©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 26 25 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP Nevertheless, the District Court granted the university’s motion for summary judgment on plaintiff’s EPA claim. The court held (1) that the university had met its burden on the affirmative defense because the evidence demonstrates that it could have legitimately relied on her successor’s higher degree and greater relevant experience to set his higher salary; 35 and (2) that plaintiff had not proven pretext because she failed to produce evidence that directly establishes discrimination, or which would permit a jury to reasonably disbelieve the employer’s proffered reason.36 The matter was appealed to the Eleventh Circuit, where the EEOC filed an amicus brief urging its interpretation of the burden shifting framework under the EPA.37 According to the EEOC, the EPA’s framework is: (1) the plaintiff must establish a prima facie case; (2) the defendant must then prove an affirmative defense that, in fact, caused the difference in pay in order to avoid liability. According to the EEOC, under the EPA, the burden never shifts back to the plaintiff to prove pretext.38 Applying the EEOC’s interpretation, for the university to prevail, it would need to submit evidence from which a reasonable factfinder could conclude that the proffered reasons do in fact explain the wage disparity (not simply that they could explain the disparity, which would be sufficient under Title VII’s McDonnell Douglass framework). Further, the EEOC urged that burden is even higher at the summary judgment stage because an employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary.39 Additionally, under the EEOC’s preferred framework, the burden does not shift to the plaintiff to prove pretext.40 According to the EEOC, the District Court’s decision to the contrary goes against Eleventh Circuit precedent, and the majority of other circuits also reject the pretext step for EPA claims.41 Notwithstanding the EEOC’s argument, this issue in fact has been hotly disputed among the federal courts over the past few years.42 The brief provides insight to the manner in which EEOC works to steer the law in directions that are plaintiff-friendly. Different burden shifting frameworks may seem like an overly technical distinction to some, but it can have real, case-dispositive impacts. For example, in EEOC v. First Metropolitan Financial Service, Inc.,43 the EEOC alleged that a financial lending company paid two female Branch Managers less than male Branch Managers. The outcome of the case was, to a large extent, determined by the different burden-shifting frameworks applied under Title VII versus the EPA. Although the two statutes apply different standards for establishing a prima facie case, the court concluded that “[h]aving found that the Plaintiff successfully established a prima facie case under the Equal Pay Act, the Court also finds that the evidence used under the EPA burden is sufficient to establish a prima facie case under Title VII.” 44 The case then turned on the employer’s affirmative defenses. The court explained that under the burden shifting scheme of Title VII, “[t]he burden of production now shifts to the Defendant to articulate some legitimate, non-discriminatory reason in light of the four exceptions outlined in the Equal Pay Act.” 45 The employer argued that the salary of plaintiff’s alleged 35 Id. at *4. 36 Id. at *7. 37 See Br. of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, Williams v. Ala. State Univ., No. 23-12692 (filed Sept. 29, 2023). 38 Id. at 10-13. 39 Id. at 14. 40 Id. at 16-19. 41 Id. 42 See, e.g., Wilder v. Stephen F. Austin State Univ., No. 9:20-cv-40-ZJH, 2021 WL 3288303, at *9 (E.D. Tex. Aug. 2, 2021) (Noting the differences in proving pretext under the McDonnell Douglas framework versus the framework applied under the EPA, the court held that, under the EPA, the defendant always keeps the burden of production and persuasion after a plaintiff has established a prima facie case: “the court will always consider pretext if the analysis gets that far, but the burden never shifts back to the plaintiff in an EPA claim.”); Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“The burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs claims under the EPA.”) (citing Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 466 (5th Cir. 2021)); Patel v. Tungsten Network, Inc., No. 2:20-cv-7603-SB-JEM, 2021 WL 4776348, at *7 (C.D. Cal. Sept. 15, 2021) (holding that the plaintiff did not need to establish pretext to avoid summary judgment because “summary adjudication on the EPA claim is proper only if Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue”) (quoting Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000)). 43 EEOC v. First Metro. Fin. Serv., Inc., 449 F. Supp. 3d 638 (N.D. Miss. 2020). 44 Id. at 647. 45 Id. at 647-48. comparator had been set at a time when it needed to hire someone quickly or else close that branch, and the comparator had made a “take it or leave it” demand that the company felt compelled to take. The court held that that satisfied the employer’s burden under the Title VII burden-shifting scheme because, under that statute, an employer “need only articulate – not prove – a legitimate, nondiscriminatory reason,” to meet its burden of production.46 However, the employer was not able to rebut the EEOC’s claims that those purportedly legitimate reasons were merely a pretext for discrimination; instead, the court found the employer’s reasons “highly suspicious” in light of the fact that it had sometimes allowed even larger branches to operate for short periods of time without a manager.47 As this case shows, wage discrimination cases often rise and fall on the identification of an appropriate comparator. Under the federal Equal Pay Act, employers are prohibited from paying employees differently for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 48 Cases often turn on this distinction. For example, in EEOC v. University of Miami,49 the EEOC alleged that a university paid a female professor less than her counterpart who performed the same job. 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 lowerranked position in the same department at a higher salary.50 The university argued that the professors did not perform substantially equal work and that the salary discrepancy could be explained by a factor other than sex. The court first held that a reasonable jury reviewing the duties of the two professors could conclude that their positions were substantially equal.51 Although the two professors taught different political science specialties, the court noted that they both had doctorate degrees, generally taught the same number of courses at the introductory and advanced levels, and were subject to the same university requirements regarding teaching and research. The university argued that the two professors were not comparable because of their different areas of specialization, because they published in different journals, and because the male professor had published in more prestigious journals. The court found this evidence unpersuasive because “the professors’ specializations within the field of political science do not appear to be dispositive as to the question of substantial job similarity,” but “[r]ather, subspecialties are considered when evaluating whether a professor conducted research and was subsequently published in high-ranking journals relevant to their respective specializations.” 52 The court was ultimately convinced that “the quality of [comparator’s] publications and number of cite counts are determinative of this inquiry because the Plaintiff’s prima facie case requires a comparison of jobs, not the skills and qualifications of the individuals who hold the jobs.” 53 Written policies regarding salary scales and job categories often factor into equal pay cases as well, as employers often rely on those policies to prove that salaries were set according to by their terms and are therefore not discriminatory. For example, in EEOC v. 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.54 According to the employer, that policy is facially neutral, and clearly permitted the employer to pay the starting salaries that it did.55 The court held, however, that the MAPS policy left open the possibility that the employer could apply discretion with respect to setting starting salaries.56 The court concluded that the alleged comparator “was hired at a rate not only higher than the female [library supervisors] represented by the EEOC, but also significantly above the salary [the 46 Id. at 648 (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 258, 258 (1981)). 47 Id. at 648-49. 48 29 U.S.C. § 206(d)(1). 49 EEOC v. Univ. of Miami, No. 19-cv-23131, 2021 WL 4459683 (S.D. Fla. Sept. 29, 2021). 50 Id. at *6. 51 Id. at *8. 52 Id. 53 Id. 54 EEOC v. Enoch Pratt Free Library, No. 17-cv-2860, 2019 WL 5593279, at *3 (D. Md. Oct. 30, 2019). 55 Id. at *6. 56 Id.
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