Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 23 court must consider actual job content. 164 The court pointed to the following key differences between the positions: (1) traffic enforcement agents undergo ten times more training than school crossing guards; (2) they are full-time employees who can be required to work nights, weekends, and overtime, whereas crossing guards are part-time employees who work no more than five hours per day; (3) they have greater responsibilities, including issuing summonses and testifying in court; and (4) they work at different, often busier intersections and sometimes at night. 165 The district court’s opinion was upheld by the Second Circuit. 166 In a short, unpublished opinion, the Second Circuit held that the school crossing guard and traffic enforcement agent positions were not substantially equivalent . 167 Plaintiffs had tried to argue that the district court erred when it failed to circumscribe the scope of its comparison to times when traffic enforcement agents are temporarily assigned to work at school crossing guard posts. 168 However, the Second Circuit noted that plaintiffs failed to cite any authority that would support narrowing the scope of the analysis to those time periods, but ultimately held that this argument had been waived because it had not been presented to the court below. 169 The court concluded: “the [school crossing guard] and [traffic enforcement agent] jobs are not substantially equivalent, as [traffic enforcement agents] must fulfill more requirements, undergo more training, perform all responsibilities, and labor under different and more hazardous working conditions.” 170 On the other hand, however, in Ellis v. Google, Inc. , 171 the Superior Court of California, San Francisco County, initially struck class allegations that sought to join together all women employed at a technology company’s corporate headquarters – from low-level hourly positions to top-ranking executives – in one massive pay equity complaint alleging systematic pay discrimination under the California Fair Pay Act. Plaintiffs alleged that the employer discriminates against its women employees by systematically paying them lower compensation than their male peers for performing substantially similar work under similar working conditions. 172 The complaint also alleged that the employer assigned and kept women in job ladders and levels with lower compensation ceilings and advancement opportunities than those to which men with similar skills, experience, and duties were assigned, and that the employer promoted fewer women, and promoted them more slowly, than similarly-qualified men . 173 The court initially held that plaintiffs’ class definition was simply too broad in that it failed to allege a common policy or course of conduct applicable to the entire class. Without such a policy, it was impossible to identify class members who had valid claims from those who did not, rendering plaintiffs’ proposed class unascertainable . 174 Plaintiffs then amended their complaint to narrow their proposed class to female employees who worked in any of 30 separate positions, which plaintiffs categorized into six job 164 Id. at *5 165 Id. ; see also Crain v. Judson Indep. Sch. Dist. , No. SA-16-CV-832-XR, 2018 WL 5315219, at *11 (W.D. Tex. Oct. 26, 2018) (granting summary judgment to employer where “Plaintiff's job as an aide did not require him to possess professional teaching skills and that other aides and supervisors at Adventure Club were not professional teachers. Adventure Club employees were subject to a different employee manual than ACE teachers. As noted by [employer], Plaintiff's own summary-judgment evidence demonstrates that Adult & Community Education and Adventure club were separate departments and that Adult & Community Education employees such as [comparator] were paid different rates than the Adventure Club employees.”); Stephens v. Bd. of Trs. of the Univ. of S. Fla. , No. 8:17-CV-53-T-23AAS, 2018 WL 4823125, at *3 (M.D. Fla. Oct. 4, 2018) (holding that clinical physician had failed to establish “equal work” because plaintiff’s own argument “about the termination of her administrative stipends – compensation for non-clinical work – renders invalid a comparison between [plaintiff] and her male colleagues. [Plaintiff] spent half her time on non-clinical work; her male colleagues spent all their time on clinical work.”). 166 Bloise v. City of New York , 768 F. App’x 103 (2d Cir. 2019). 167 Id. at *138. 168 Id. 169 Id. 170 Id. 171 Order Sustaining Def. Google Inc.’s Dem. to Pls.’ Class Action Compl., Ellis v. Google, Inc. , No. CGC-17-561299 (Cal. Super. Ct. Dec. 4, 2017). 172 Id. at 1-2. 173 Id. at 2. 174 Id. at 4.