Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 15 of tasks,” the court still found differences in roles and responsibilities that precluded plaintiff’s prima facie case. 102 Crucially, however, the court held that an EPA plaintiff may resort to comparator positions from the past – even those that are well before the statute of limitations for her claim – to establish a prima facie case of wage discrimination, holding that it was consistent with the purpose of the EPA “to consider the wages that a comparator previously received for substantially similar work; the Court should not have to disregard a gender-based discrepancy in salaries simply because the higher paid position has evolved or no longer exists.” 103 The different statutes of limitations for EPA and Title VII claims can be critical when plaintiffs attempt to compare themselves to past positions. In Boatright v. U.S. Bancorp , 104 a Manager Director of a financial services firm alleged, under the EPA and Title VII, that she had been paid less than a male comparator. The court held that she could not establish a prima facie case under the EPA because, during the entire relevant time period for that statute, her chosen comparator was her superior, having been promoted to chief of the group in which she was employed. 105 As her superior, it was clear that his job was not substantially equal to hers. Among other things, he “served as the leader and supervisory principal of the San Francisco office and supervised all employees of the [group]. He was in charge of monitoring the performance of all employees and evaluating them. Additionally, he was charged with developing and implementing the [group’s] revenue generation strategies. ” 106 Title VII, however, has a longer statute of limitations. For some of the relevant period, plaintiff and her male comparator shared the same Managing Director job tile. This was enough under the minimal burden required of plaintiffs under Title VII to establish that he was a proper comparator. Among other things, the court noted that they shared the same title and internal grade within the employer’s hierarchy, occupied the same level on the company’s organization chart, and had the same job description when hired . 107 However, a prima facie case under Title VII also requires the plaintiff to show facts giving rise to an inference of discriminatory animus, an intent requirement that is not required by the EPA. The court held that she had failed to do so, holding that the differences in pay and resources between her and her comparator were not sufficient to establish that animus . 108 Moreover, although plaintiff had pointed to several allegedly discriminatory remarks, including that Washington, D.C. had “bad ... neighborhoods” and was “unseemly,” that the former Chairman of Goldman Sachs “grew up in a really bad neighborhood,” and that “the Obamas are disgusting,” the court held that those statements were “race and gender neutral”: “[a]n employer or supervisor can comment that an urban area has bad neighborhoods or compliment a bank Chairman for having achieved success despite having come from a less privileged background without – by such comments – taking on the burden to justify (even through a burden of production) an adverse employment action for an employee.” 109 Many times plaintiffs turn to “pay bands” or other hierarchical levels within an organization to try to establish that employees within the same band or level perform equal work. Some plaintiffs have had success using such proxies. For example, in Baker-Notter v. Freedom Forum, Inc. , 110 the court held that a 102 Id. at 595-96. 103 Id. at 592. See also Powell v. New Horizons Learning Solutions Corp. , No. 17-CV-10588, 2018 WL 6571216, at *5 (E.D. Mich. Dec. 13, 2018) (“If a female employee is paid less that a male predecessor, the Sixth Circuit permits claims of unequal pay.”) (citing Conti v. Am. Axle , 326 Fed. App’x 900, 914 (6th Cir. 2009)). 104 Boatright v. U.S. Bancorp , No. 18-CV-7293, 2020 WL 7388661 (S.D.N.Y. Dec. 16, 2020). 105 Id. at *12. 106 Id. 107 Id. at *16. 108 Id. 109 Id. at *16-17. Moreover, “an employer or supervisor may make derogatory, but race and gender neutral, comments about a political figure including a President of the United States without giving rise to an inference of discrimination.” Id. at *17. 110 Baker-Notter v. Freedom Forum, Inc. , No. 18-CV-2499 (RC), 2019 WL 4601726 (D.D.C. Sept. 23, 2019). In that case, a Senior Director of Operations for a political nonprofit organization in Washington DC alleged various claims against her employer, including under the EPA. The nonprofit moved to dismiss, arguing that plaintiff had utterly failed to plead facts sufficient to show that the skills, effort, and responsibilities required of her position and her alleged male comparators were substantially equal. Id. at *9. The district