Developments in Equal Pay Litigation

26 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP And although the employer school district was able to show with respect to each comparator that there were various reasons why those comparators may have been hired above-step, the court could not say, at the summary judgment stage, that any of those proffered reasons actually justified the wage disparity: “The Record here reflects a busload of similarly nondiscriminatory reasons that could in theory explain the Step disparities. However, there is little to no direct or inferential evidence that any administrators or School Board Directors were actually motivated to recommend hiring or to hire the comparators above- Step because : (1) they were specially qualified; (2) they had desirable experience; (3) the District needed flexibility in placement; (4) the District was facing a pressing need at the time; (5) the District needed to quickly fill vacancies; (6) the comparator negotiated; or (7) the comparator indicated she would not accept unless given commensurate salary.” 195 However, the same discretionary elements mean that plaintiffs were not entitled to summary judgment either: “While this hiring method seems to permit a level of discretion that could allow for sex-based discrimination, it is the province of the jury to determine when, how, and if at all the District did in fact base its decisions on nondiscriminatory factors.” 196 Accordingly, both cross motions for summary judgment were denied. Similarly, in Melgoza v. Rush University Medical Center , 197 an Assistant Vice President of a medical center alleged that she was paid less than comparable males. The employer argued that any pay discrepancy was due to factors other than sex; in particular, it argued that it pays Assistant Vice Presidents according to a pay grade system that is determined based on job description, responsibilities, skills, and education. 198 However, the court found that some of those positions were not graded. Rather, the medical center sometimes identified a position as “admin/tech manager 28,” which did not have any minimum or maximum salary associated with it. 199 Because that grade had been assigned to plaintiff and her chosen comparators, the court held that the pay grade system did not explain the pay differential: “[e]ven assuming for the sake of argument that [employer’s] grading system applied to all AVPs, [employer] does not explain how that system resulted in the actual salary differentials.” 200 Another recent case clarified that an employer cannot defend a pay equity claim by pointing to a mistake that was made in placing an employee within its compensation hierarchy. In Johnson v. Canyon County, Idaho , 201 four female Licensed Practical Nurses alleged that they were paid less than their male counterparts for equal work. The employer argued that the salary differential was the result of a mistake, whereby one of plaintiffs’ male comparators was assigned a code for a Registered Nurse when he was hired and was paid more as a result of that mistake . 202 According to the employer, that mistake meant that the pay difference was due to a factor other than sex. The court held that the “factor other than sex” affirmative defense had to be read in light of the other three affirmative defenses, which all relate to job experience, job qualifications, and job performance and were therefore exceptions that were job-related. But the employer’s mistake could not be considered job-related: “Blind adherence to a classification number is actually the opposite of a job-related factor because it is blind to anything akin to job experience, qualifications, or performance.” 203 Because that was the employer’s only explanation for the difference in pay, the court granted summary judgment to the four female plaintiffs. Economic concerns, such as competitive pressures to attract top talent, as well as financial difficulties and corporate cutbacks, are often relied upon as factors other than sex. For example, in Nazinitsky v. Integris Baptist Medical Center, Inc. , 204 a physician, an infectious disease specialist, claimed that her employer violated the EPA by paying her less than other physicians in different specialties, namely a 195 Id. at *15 (emphasis in original). 196 Id. at *21 (emphasis in original). 197 Melgoza v. Rush Univ. Med. Ctr. , No. 17-CV-6819, 2020 WL 6565235 (N.D. Ill. Nov. 9, 2020). 198 Id. at *7. 199 Id. 200 Id. 201 Johnson v. Canyon Cnty., Idaho , No. 1:19-CV-364-BLW, 2020 WL 5077731 (D. Idaho Aug. 27, 2020). 202 Id. at *1. 203 Id. at *3. 204 Nazinitsky v. Integris Baptist Med. Ctr., Inc. , No. 19-CV-043-R, 2020 WL 1957914 (W.D. Okla. Apr. 23, 2020).