Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 27 Hospitalist and a Nephrologist. The court assumed without deciding that she had met her burden to establish that she performed work that was substantially equal to her alleged comparators. 205 It then considered the employer’s affirmative defense that her salary had been based on two factors other than sex: (1) a bona fide, gender-neutral pay classification system based on marketplace value; and (2) employee experience. The court found that the employer’s practice of paying physicians based on the market value range of their medical specialty was a legitimate factor other than sex . 206 Although that alone did not account for the entire salary difference – because each physician is compensated within a range associated with their medical specialty – that, coupled with the physicians’ different levels of experience, added up to a bona fide factor other than sex: “[plaintiff’s] specialty placed her in a lower compensation range than her male comparators – creating a wage disparity – and her lack of experience increased that disparity even further. ” 207 The variety of ways that economic considerations intrude upon employers’ compensation decisions, and the ways that those decisions will be viewed by a court, are difficult to categorize or generalize about. Business considerations vary widely. To take just a few recent examples: In one case, the Eighth Circuit held that a school district had adequately explained the fact that plaintiff’s job had been targeted for downsizing because the subject the plaintiff taught did not appear on statewide testing and therefore did not require two programmers, and because the director of fine arts could handle both elementary and secondary fine arts programming. 208 In another recent case, a court held that an employer had justified a pay disparity between the current occupier of a position as compared to her predecessor where it was clear that the plaintiff’s position was temporary; the court held that the temporary nature of a position may constitute a factor other than sex to justify an otherwise illegal pay disparity provided that the position was temporary in fact, and that the employee in that position knew it was temporary. 209 And another court held the salary hiring guidelines put in place by the USPS could justify a pay disparity where those guidelines allowed for an offer to be made that was up to five percent higher than a new hire’s private sector salary in order to stay competitive to attract talent from the private sector . 210 Employers should beware, however, that fine-grained differences between employees – while perhaps legitimate as “factors other than sex” – will often not be weighed and decided by a court prior to trial. Those decisions are often left for the jury, meaning that employers face the unpalatable prospect of a jury 205 Id. at *4. 206 Id. 207 Id. at *5. 208 Routen v. Suggs , 772 F. App’x 377, 378-79 (8th Cir. 2019) (holding that that plaintiff’s sex was not a reason for her pay cut or the reduction in the length of her contract because the evidence at trial showed that the school district had taken these actions because of economic and administrative concerns, rather than discrimination). 209 Cavazos v. Hous. Auth. of Bexar Cnty. , No. SA-17-CV-00432-FB, 2019 WL 1048855, at *7 (W.D. Tex. Mar. 5, 2019) (held that the temporary nature of a position may constitute a factor other than sex to justify an otherwise illegal pay disparity, but denying summary judgment because the evidence did not establish as a matter of law that plaintiff’s performance as an interim Executive Director could be considered a temporary reassignment because, among other things, she had been told that she was the search committee’s second-choice candidate and that she would be automatically selected if the first choice-candidate declined (which he did)). 210 Ruiz-Justiniano v. U.S. Postal Serv. , No. 16-CV-1526 (MEL), 2018 WL 3218363 (D.P.R. June 29, 2018) (holding that salary guideline in place at the time of the female comparator’s hire, which allowed her to be given an offer up to five percent higher than her private sector salary and was intended to allow USPS to stay competitive in outside hiring justified pay disparity and was not pretext). See also Terry v. Gary Cmty. Sch. Corp. , 910 F.3d 1000, 1010 (7th Cir. 2018) (holding that a salary freeze provided an adequate justification for a pay disparity because: “there is nothing from which we may reasonably infer that there were ways to circumvent the salary freeze and that because the District did not take such measures, the District was simply choosing not to increase [plaintiff’s] salary.”); Reddy v. Ala. Dep’t of Educ. , No. 2:16-CV-01844-SGC, 2018 WL 4680152, at *6-7 (N.D. Ala. Sept. 28, 2018) (holding that employer adequately justified pay disparity between two physicians on the basis of those physicians: (1) different levels of relevant experience; (2) different levels of clinical practice experience; (3) different medical specialty; and (4) prior salary history); Hayes v. Deluxe Mfg. Operations LLC , No. 1:16-CV-02056-RWS-RGV, 2018 WL 1461690 (N.D. Ga. Jan. 9, 2018) (“[Employer] has shown that the pay disparity between [plaintiff] and her male comparators was based on increases in the starting hourly wage over the years, market considerations, merit-based increases, and consideration of an applicant's experience and qualifications, and it has therefore offered factors that were not based on sex and ‘are sufficient to sustain its burden to show that the salary disparity does not result from sex discrimination.’”) (quoting Schwartz v. Fla. Bd. of Regents , 954 F.2d 620, 623 (11th Cir. 1991)).