54 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP the physicians’ different levels of experience, added up to a bona fide factor other than sex: “[plaintiff’s] specialty placed her in a lower compensation range than her male comparators—creating a wage disparity—and her lack of experience increased that disparity even further.”383 Legitimate economic concerns can even include an employer’s concern about internal equal pay. In Korty v. Indiana University Health, Inc.,384 the court held that an employer’s own attempts at promoting internal equal pay could be a “factor other than sex” defense. In that case, a specialist medical staff quality and peer review nurse at a statewide healthcare organization alleged pay discrimination when her employer hired her replacement at a higher salary.385 The court first held that it was entirely reasonable for the employer to have considered the replacement’s prior salary in its salary offer.386 The court also held the employer was justified in raising the replacement’s salary due to its consideration of internal equity concerns. Among other things, the employer had reviewed the pay rates of ten other clinical care nurse quality coordinators in different regions of the state, finding that all were female and most had been paid more than plaintiff.387 The court therefore concluded that “[t]here is no doubt at all that internal equity was considered in determining [comparator’s] salary, and it is a sex-neutral basis for coming up with his salary.”388 Accordingly, the court held that the plaintiff had failed to show a sex-based wage differential. The variety of ways that economic considerations intrude upon employers’ compensation decisions, and the ways that those decisions will be viewed by a court, are difficult to categorize or generalize about. Business considerations vary widely. To take just a few recent examples: In one case, the Eighth Circuit held that a school district had adequately explained the fact that plaintiff’s job had been targeted for downsizing because the subject that plaintiff taught did not appear on statewide testing and therefore did not require two programmers, and because the director of fine arts could handle both elementary and secondary fine arts programming.389 In another recent case, a court held that an employer had justified a pay disparity between the current occupier of a position as compared to her predecessor where it was clear that the plaintiff’s position was temporary; the court held that the temporary nature of a position may constitute a factor other than sex to justify an otherwise illegal pay disparity provided that the position was temporary in fact, and that the employee in that position knew it was temporary.390 And another court held 383 Id. at *5. On appeal, the Tenth Circuit found that the market compensation for the specialists plaintiff was comparing herself to was higher than that provided for her specialty. According to the court’s calculations, that difference alone accounted for roughly 40% of the alleged wage differential. Nazinitsky v. Integris Baptist Med. Ctr., Inc., 852 F. App’x 365, 368 (10th Cir. 2021).The court then concluded that the remaining part of the differential was explained by differences in levels of work experience: “Common sense tells us as much here. [Plaintiff] was a first-year physician and is comparing herself to physicians with at least seven years’ more experience.” Id. See also Martin v. Delta Cnty. Mem’l Hosp. Dist., No. 19-cv-1339-STV, 2021 WL 6112878, at *12 (D. Colo. Dec. 23, 2021) (holding that a hospital successfully argued it had to pay a male physician a higher salary due to the more difficult market conditions at the time he was hired: “Based upon the uncontradicted evidence that [comparator’s] pay was based upon market conditions and not sex, the Court concludes that no rational jury could find that the pay differential between [comparator] and [plaintiff] were based upon sex.”); Barnett v. Roanoke Cnty. Sch. Bd., No. 7:20-cv-663, 2021 WL 5611317, at *8 (W.D. Va. Nov. 30, 2021) (holding that employer adequately justified pay disparity on the basis of the “sense of urgency” that surrounded plaintiff’s comparator teacher’s hiring, including the “late timing of the vacancy and the impending start of the school year,” and that the only other finalist for the position withdrew from consideration). 384 Korty v. Ind. Univ. Health, Inc., No. 4:21-cv-33-PPS, 2022 WL 17830485, at *4 (N.D. Ind. Dec. 21, 2022). 385 Her replacement was chosen from within the company, and he was in a position that paid more than plaintiff’s position. The employer wanted to hire the replacement, however, and so it subjected his starting salary to a number of reviews, including an internal equity review, to see what it could offer as a starting salary based on market range, internal equity, and the replacement’s knowledge, skills and abilities. Id. at *2. The replacement negotiated for an even higher salary, which the employer agreed to. The employer documented its reasons for offering the higher salary to the replacement, noting that he had obtained a number of pay raises in his prior position and was therefore starting at a higher rate. Id. at *3. 386 Id. at *4. 387 Id. at *6. 388 Id. Although the implication of the court’s reasoning is that plaintiff’s salary must have been set too low, when compared to the employer’s own internal equity analysis, the court held that she “was hired at a different point in time, and with different work experience than [comparator],” and that it did not know anything about the employer’s budget when plaintiff was hired several years earlier, “or whether she tried to negotiate a higher salary (like [comparator] did), or if she accepted what she was initially offered.” Id. 389 Routen v. Suggs, 772 F. App’x 377, 378-79 (8th Cir. 2019) (holding that plaintiff’s sex was not a reason for her pay cut or the reduction in the length of her contract because the evidence at trial showed that the school district had taken these actions because of economic and administrative concerns, rather than discrimination). 390 Cavazos v. Hous. Auth. of Bexar Cnty., No. SA-17-cv-00432-FB, 2019 WL 1048855, at *7 (W.D. Tex. Mar. 5, 2019) (holding that the temporary nature of a position may constitute a factor other than sex to justify an otherwise illegal pay disparity, but denying
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