©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 39 less than her comparator for doing equal work.90 The exact reasons for this conclusion will probably always remain obscure, but it does tend to cast doubt on the EEOC’s “compression theory” of unequal pay; i.e., the theory that a pay disparity exists when initial pay disparities compound over time through the natural process of annual percentage pay increases. The University had hired the charging party as an associate professor during the same year that it hired a male professor with comparable qualifications for a lower-ranked position in the same department at a higher salary.91 Thereafter, the University’s policy of making fixed pay increases only exacerbated the situation over time, so that by the time they became full professors, the male professor made approximately $28,000 more than the female professor.92 Apparently, the jury did not find that this difference was due to any discrimination on the part of the University. In fact, written policies and salary scales often factor into pay equity cases, as employers often rely on those policies to prove that salaries were set according to such policies and are therefore not discriminatory. For example, in Enoch Pratt Free Library, the employer pointed out that it used a Managerial and Professional Society Salary Policy (“MAPS”) to determine compensation for newly hired library supervisors.93 According to the employer, that policy is facially neutral, and clearly permitted the employer to pay the starting salaries that it did.94 The court held, however, that that policy did not necessarily compel any specific salary to be awarded to a new hire.95 The MAPS policy left open the possibility that the employer could apply discretion with respect to setting starting salaries.96 Applying Maryland Insurance Administration, the court concluded that “[the EEOC’s comparator] was hired at a rate not only higher than the female [library supervisors] represented by the EEOC, but also significantly above the salary he had received during his first tenure at [employer]. Given these facts, combined with the inherent discretion within the MAPS policy, genuine factual questions exist about how defendants arrived at [the comparator’s] salary.” 97 This employer lost at trial. On December 23, 2020, after the conclusion of a five-day bench trial, the court issued its conclusion that the employer had violated the EPA.98 The EEOC easily met its burden to establish a prima facie case because the parties stipulated that the comparator’s salary was higher than that of each charging party.99 The employer argued that each library branch differed with respect to circulation size, outreach efforts, and physical footprint, thus rendering the job duties of each library supervisor to dissimilar to support a finding that they performed equal work. The court found, however, that the core job duties were the same, relying in part on evidence that the positions shared the same job description and supervisors often substituted for one another on a short- or long-term basis without requiring any additional training and without any alternation in pay.100 The differences among library branches did not defeat the EEOC’s case because “none of th[ose] differences translated into job duties that differed significantly from one another.” 101 90 See Verdict Form at 2, EEOC v. Univ. of Miami, No. 19-CV-23131, (S.D. Fla. Mar. 11, 2022), ECF No. 190. 91 Id. at *6. 92 Id. 93 EEOC v. Enoch Pratt Free Library, No. 17-CV-2860, 2019 WL 5593279, at *3 (D. Md. Oct. 30, 2019). 94 Id. at *6. 95 Id. 96 Id. 97 Id. at *7. See also EEOC v. George Washington Univ., No. 17-CV-1978, 2019 WL 2028398, at *4 (D.D.C. May 8, 2019) (denying an employer’s motion to dismiss even though the complaint at issue did not explicitly allege how the positions at issue were equal with respect to skill, effort, and responsibility, holding that the complaint “straightforwardly pleads that [plaintiff] was paid less as Executive Assistant than [comparator] was paid as a Special Assistant for substantially the same job responsibilities”); EEOC v. Univ. of Miami, No. 19-CV-23131-Civ-Scola, 2019 WL 6497888, at *2 (S.D. Fla. Dec. 3, 2019) (denying a motion to dismiss claims brought by professors in the same department because the EEOC had supported its claims of pay discrimination with numerous allegations relating to the professors job duties, such as teaching classes and publishing books and articles, and allegations that the female professor had two more years of teaching experience and had published more works, and because the EEOC had alleged that both professors were in the same department and had been promoted to full professor at the same time after a review by the same committee based on the same criteria); EEOC v. Denton Cty., No. 4:17-CV-614, 2018 U.S. Dist. LEXIS 175794, at *22 (E.D. Tex. Oct. 12, 2018) (denying cross motions for summary judgment, holding that it was “not convinced that [defendant] or the EEOC has met their respective burdens demonstrating that there is no material issue of fact as to the EEOC’s claim for violation of the Equal Pay Act entitling it to judgment as a matter of law”). 98 EEOC v. Enoch Pratt Free Library, No. 8:17-CV-2860, 2020 WL 7640845 (D. Md. Dec. 23, 2020). 99 Id. at *8. 100 Id. at *9. 101 Id. (emphasis in original).
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