Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 1 EQUAL PAY LEGISLATION A. The Federal Equal Pay Act And Title VII The Equal Pay Act (“EPA”) was enacted by Congress in 1963, one year earlier than Title VII of the Civil Rights Act of 1964 (“Title VII”). It prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which [it] pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . . ” 1 T he law recognizes four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex . 2 T he EPA therefore overlaps with Title VII, in that both statutes prohibit discrimination on the basis of sex. However, as discussed below, the EPA diverges from Title VII, both procedurally and substantively, in important ways. 3 In addition to private litigation, the EPA can give rise to enforcement proceedings brought by the U.S. Equal Employment Opportunity Commission (“EEOC”). For the past several years, the EEOC has identified equal pay as one of the six enforcement priorities in its Strategic Enforcement Plan . 4 A lthough the number of filings under the EPA make up a relatively small percentage of the EEOC’s docket, agency personnel have repeatedly reaffirmed its importance as an enforcement priority for the EEOC. This publication addresses significant developments in equal pay litigation under the federal EPA, Title VII, and similar state laws. Although there is an emphasis on the most recent decisions from 2020 and early 2021 in order to provide an up-to-date snapshot of the current state of the case law, the primary aim of this publication is to identify and discuss significant developments in the law, some of which may take several years to mature. It also discusses recent developments in EEOC enforcement litigation under the federal EPA. 1 29 U.S.C. § 206(d)(1). 2 Id. 3 Many courts have held that the standards of liability for EPA and Title VII pay discrimination claims are sufficiently similar that they should often be decided the same way. See, e.g., Gallaway v. Rand Corp. , No. 2:18-CV-01379-RJC, 2020 WL 1984312, at *14 (W.D. Pa. Apr. 27, 2020) (holding that the analysis regarding the third and fourth elements of a Title VII pay discrimination claim were “aided in large part by the reasoning as to the Equal Pay Act claim, supra. As to the third prong, there is a genuine dispute of material fact that Plaintiff suffered an adverse action when she was paid less than her male comparators who performed similar duties. . . . As to the fourth prong, there is sufficient record evidence to allow a reasonable factfinder to conclude that Plaintiff's performance of the same duties under the same level of supervision gives rise to an inference of unlawful discrimination”). However, the Second Circuit recently clarified an important substantive difference between these statutes. In Lenzi v. Systemax, Inc. , 944 F.3d 97 (2d Cir. 2019), the plaintiff had alleged violations of the EPA and Title VII related to the setting of her compensation. The District Court dismissed her claims, holding that her Title VII claims, like claims brought under the EPA, required her to show “positions held by her purported male comparators [were] substantially equal to her position.” Id. at 108 (internal citations omitted). Plaintiff could not make this showing because she was the only employee who held her job title and duties, so her Title VII claims were dismissed. The Second Circuit acknowledged that one of its opinions from 1995, which held that “[a] claim of unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an EPA claim,” is commonly cited by district courts in their analyses of Title VII pay discrimination claims. Id. at 109 (quoting Tomka v. Seiler Corp. , 66 F.3d 1295, 1312 (2d Cir. 1995)). The court expressed a desire to “take this opportunity to clarify that a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay,” as is required by the EPA. Id. at 110. While affirming that a plaintiff could bring a claim for equal work for unequal pay under Title VII if they could show a discriminatory animus behind the pay determination, the court emphasized that such a claim was not the only kind of Title VII claim available related to pay. The court concluded by reiterating that “all Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.” Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). Discriminatory pay claims can be brought successfully under Title VII even if the plaintiff cannot show a purported comparator of the opposite sex earned more. 4 U.S. E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION S TRATEGIC E NFORCEMENT P LAN F ISCAL Y EARS 2017 - 2021, available at https://www.eeoc.gov/eeoc/plan/sep-2017.cfm.