Developments in Equal Pay Litigation

22 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP same claims under the Illinois Equal Pay Act, Title VII, and the Illinois Civil Rights Act . 155 Plaintiff’s expert had shown that female physicians are paid less at a statistically significant level than similarly situated male physicians. 156 However, the court held that this statistical disparity, by itself, was not enough to warrant class treatment; plaintiff must establish the “glue” that can produce a common answer to the questions of whether and why compensation for female physicians is lower than male physicians. 157 According to plaintiff, the case was appropriate for class treatment because the centralized compensation decision making yielded an inequitable result. The court held that this was not sufficient because plaintiff had “not presented any argument that objective factors considered by the Department Chairs or the Dean in determining compensation resulted in the pay disparity. ” 158 Plaintiff’s statistical evidence alone, “does not and cannot show whether a common cause existed regardless of the statistically significant showing of pay disparities based on gender.” 159 Later in the case, the court decertified the collective action as well, holding that plaintiff had failed to identify a common policy that caused the alleged discrimination. 160 2. Recent Cases Involving Class Action Certification When plaintiffs proceed under state equal pay statutes, they must meet the more rigorous standards applicable to federal Rule 23 class actions or similar state-specific class action requirements. If they can meet those standards, however, they are often rewarded with a much larger class, because those classes are “opt-out” classes rather than “opt-in” classes. Under the collective action mechanism of the EPA, if putative members of the collective action do not opt into the lawsuit, then they are not a part of the collective action. Class actions, on the other hand, automatically include every employee who meets the class definition unless they affirmatively choose to opt out of the class action. When combined with the sometimes more lenient standards for establishing a prima facie case that are available under some state equal pay statutes, this can provide powerful incentive for plaintiffs to pursue a class action under state law, rather than the federal EPA. For example, In Miller v. City of New York , 161 the District Court for the Southern District of New York dismissed a sprawling class of over 2,000 city employees alleging claims under the federal EPA, the New York State Human Rights Law, and the New York City Human Rights Law. That case involved a class (and conditionally certified collective action) of female school crossing guards, who alleged that they were paid less than traffic enforcement agents even though they do the same work . 162 The court disagreed, holding that there were “stark differences in training, job requirements, and job responsibilities” between the two positions . 163 The court expressly rejected plaintiffs’ broad generalization that the two positions were the same because they both involved “direct[ing] the flow of pedestrians and traffic,” holding that the 155 Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 15-CV-3308, 2018 WL 4350180 (C.D. Ill. Sept. 12, 2018). 156 Id. at *9. 157 Id. at *10. 158 Id. 159 Id. at *11. 160 Ahad v. Bd. of Trs. of S. Ill. Univ. , No. 15-CV-3308, 2019 WL 1433753 (C.D. Ill. Mar. 29, 2019). See also Knox v. John Varvatos Enters., Inc. , 282 F. Supp. 3d 644 (S.D.N.Y. 2017). In Knox , the District Court for the Southern District of New York conditionally certified a collective action of female sales associates. The defendant, a retailer with 22 stores throughout the United States, was alleged to have discriminated against female sales associates by providing male sales associates – and only male sales associates – a $12,000 annual allowance to purchase the Company’s branded clothing to wear to work. Id. at 651. The district court held that the plaintiffs had “easily made” their modest factual showing establishing that they and the putative collective action of women sales associates are similarly situated for purposes of conditional certification. Id. at 654. Critical to the court’s analysis was the fact that plaintiffs were able to point to a written dress policy that was applied across all 22 retail locations, which stated that all male employees received a clothing allowance. Id. at 654-55. A trial was held on plaintiffs’ claims in early 2020. On January 12, 2021, the Court affirmed the verdict of the jury in favor of plaintiffs and refused to grant defendant judgment as a matter of law or a new trial on critical issues of liability, but did allow for a new trial on issues of compensatory and punitive damages. Knox v. John Varvatos Enters., Inc. , No. 17-CV-772 (GWG), 2021 WL 95914 (S.D.N.Y. Jan. 12, 2021). 161 Miller v. City of N.Y. , No. 15-CV-7563, 2018 WL 2059841 (S.D.N.Y. May 1, 2018). 162 Id. at *1. 163 Id. at *4.