Developments in Equal Pay Litigation

14 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP court throughout the course of the litigation, holding that “the [district court’s] discovery restrictions suffocated any chance for [plaintiff] fairly to present her claims. ” 93 Attorneys and other legal professionals have also experienced difficulties establishing this element of a prima facie case. For example, in Tolton v. Jones Day , 94 the District Court for the District of Columbia held that associate attorneys of a large law firm did not necessarily perform equal work as other associates in the same class year if they did not work in the same geographic area or the same practice group. In that case, a group of female attorneys alleged a variety of theories of sex discrimination against their former law firm employer. The court held that some of the plaintiffs had alleged sufficient facts to state an EPA claim, while others did not. In particular, the court did not credit plaintiffs’ allegations that they were not paid “Cravath market pay” because they had failed to allege that all of the employer’s offices around the country operated in the same “market,” or that the market they were referring to would have applied to offices outside of New York. 95 But the court did allow the claims of some plaintiffs to proceed where they plausibly alleged that they earned less than male comparators who were at their same level and performed similar work. For example, the court allowed one plaintiff’s claims to proceed because she alleged that she was paid less than other male associate attorneys in the same office who worked in the same sub-practice group and, in at least one case, was a year junior to her . 96 Similarly, in Smith v. Office of the Attorney General, State of Alabama , 97 the District Court for the Middle District of Alabama held that the work of criminal investigators who focused on different types of crimes did not perform equal work. In that case, an investigator with the Office of the Attorney General of Alabama alleged that she was paid less than male comparators who worked in a different division of the same office. The court held that she failed to establish a prima facie case of wage discrimination because her work investigating crimes of violence against women and children were “a different animal entirely” than the public corruption and similar crimes that were investigated by her chosen comparators in the Special Prosecutions Division. 98 Although investigators in both divisions would perform similar activities, the court held that would generally be true of all law enforcement investigator positions; those activities did not define the job. Instead, the court held that a distinction should be made between general training and education required for an investigator position generally versus the specific training and expertise required of certain investigators. “A lawyer or detective trained for or mostly familiar with one – and who has excelled in that particular area of law – will not necessarily possess the expertise required to thrive in the other, at least without some extended and specialized training. ” 99 The different levels of skill required meant that those jobs were not “virtually identical” as the EPA requires. 100 Because the evaluation of “equal” or “similar” work is so fact-specific and often difficult to prove, plaintiffs often attempt to rely on various proxies to establish that requirement. One shortcut that is often successful is to compare plaintiff’s pay with a predecessor who held the same position. This will often be sufficient to establish equality of work, unless there have been changes in duties or levels of responsibility. In Kling v. Montgomery County, Maryland , 101 the court even held that an EPA plaintiff can establish a prima facie case by comparing her work and job responsibilities to a comparator’s position and responsibilities from the past , even if the comparator no longer holds that position. Although the court held that the plaintiff’s current position and the male comparator’s earlier position “share a common core 93 Miller v. Sam Houston State Univ. , 986 F.3d 880, 892 (5th Cir. 2021). 94 Tolton v. Jones Day , No. 19-CV-945 (RDM), 2020 WL 2542129 (D.D.C. May 19, 2020). 95 Id. at *30. 96 Id. 97 Smith v. Office of the Att’y Gen., State of Ala. , No. 2:17-CV-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020). 98 Id. at *7. 99 Id. 100 Id. at *8. 101 Kling v. Montgomery Cnty., Md. , 324 F. Supp. 3d 582 (D. Md. 2018). In this case, a “Hispanic Liaison” for the Montgomery County Police Department requested a reclassification of her position to a higher pay grade, pointing to a male county employee who she alleged held a similar position at a higher pay grade. Id. at 588. After the county pointed out that the male comparator’s current position included significant contract monitoring, training, and other responsibilities beyond plaintiff’s role, she pointed to the position the comparator held from 2004-2008. Id. at 591-92.