Developments in Equal Pay Litigation

12 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP certification, holding that it “does not properly analyze the pay rates of putative class members and juxtapose those against employees who perform substantially similar work. ” 76 Similarly, in Kassman v. KPMG LLP , 77 the court rejected an employees’ attempt to use statistics to prove classwide wage discrimination because the statistical analysis could not adequately account for the differences among individual employees’ job duties and working conditions. Plaintiffs’ expert performed a regression analysis and found statistically significant differences in compensation between men and women, controlling for job level, experience, education, job location, and performance ratings. 78 But the employer’s expert concluded that no statistically significant disparity exists when employees are appropriately classified according to specialized job categories. 79 The court concluded that Plaintiffs had failed to establish that pay and promotion practices are uniform across the company, so there was no good reason to rely on aggregated, nationwide statistics . 80 2. Showing That Work Is “Equal” Or “Substantially Similar” To establish a prima facie case under the federal EPA, an employee must establish that they were paid less than an employee of the opposite sex – often referred to as a “comparator” – for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 81 This “equal work” requirement can present some significant hurdles to putative plaintiffs, especially for those hoping to certify sprawling collective or class actions. Some states, however, have adopted more lenient standards, such as California’s standard: “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. ” 82 Other states apply a “comparable character,” standard, or some other standard that may be more or less lenient than the “equal work” or “substantially similar work” standards . 83 The requirement that a plaintiff show that they performed the same or similar work as their chosen comparators is often the most significant stumbling block for a plaintiff’s prima facie case. 84 Some 76 Id. at *47. Plaintiffs’ expert had attempted to control for location and job category using the EEOC’s EEO-1 categories to establish that any two individuals within the same EEO-1 category were performing “substantially similar work.” Id. at *44-47. The employer’s expert opined that because there are only ten such categories, they would, by necessity, tend to group employees within the same category who are demonstrably not performing “substantially similar work” within the meaning of California law. The employer’s expert noted, among other things, that “over 80 percent of the records in [plaintiff’s expert’s] analytic file fall into a single EEO-1 occupational category, [plaintiff’s expert’s] model has effectively no statistical control to situate employees with respect to their skill, effort and responsibility.” Id. at *45. Without the use of any statistical methodology to assess statutory violations on a class basis, the court would have to “individually review a class member's status and assess whether those employees perform ‘equal work’ under ‘similar working conditions’ or ‘substantially similar work when viewed as a composite of skill, effort, and responsibility.’" Id. at *48. 77 Kassman v. KPMG LLP , 416 F. Supp. 3d 252 (S.D.N.Y. 2018). In that case, plaintiffs sought to bring a class and collective action on behalf of more than 10,000 female Associates, Senior Associates, Managers, Senior Managers/Directors, and Managing Directors within the company’s Tax and Advisory Functions from 2009 to the present. Id. at 259. 78 Id. at 263-64. 79 Id. at 265. Rather, the data “reflects a heavier concentration of men in higher compensated units and heavier concentration of women in lesser compensated units.” Id. 80 Id. at 282. Moreover, because the employer allowed individual managers discretion over pay decisions, the court held that “there is no (non-discretionary) uniform causal mechanism for determining pay and promotion operating across the Proposed Collective. This means that there are likely 1,100 defenses to justify why the 1,100 opt-ins were paid as they were. Adjudicating the claims of the proposed collective in a single action would give rise to obvious procedural difficulties and could not assure fair treatment of any party involved.” Id. at 288. 81 29 U.S.C. § 206(d)(1). 82 See Cal. Lab. Code § 1197.5(a). 83 See, e.g., Md. Code Ann. Lab. & Empl. §§ 3-304(b)(1)(i). 84 Federal employees arguably must meet an even higher threshold for proving a prima facie case because controlling Federal Circuit Court authority imposes an extra requirement – that plaintiffs establish that the alleged pay differential was “based on sex.” In Gordon v. U.S. , 903 F.3d 1248 (Fed. Cir. 2018), vacated as moot , 754 Fed. App’x (Fed. Cir. 2019), the Federal Circuit affirmed the dismissal of two Veterans Affairs physicians’ federal EPA claims because they had not established that the alleged pay differential was “based on sex.” The plaintiffs had pointed to another physician recently hired into an identical position and ten male ER physicians as their comparators. Id. at 1252. The court agreed with plaintiffs that they had “raised a fact issue that [employer’s]