Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 31 This issue continues to divide the district courts. For example, in Kellogg v. Ball State University , 236 the District Court for the Southern District of Indiana held that the Seventh Circuit allowed theories of “salary compression” as a justification for wage disparities. In that case, a female university instructor was told that the reason her salary did not match those of other instructors is because they had started at a higher starting salary, and over time, each instructor had varying percentage increases in pay that had led to the present disparity in pay. 237 The district court pointed to the Seventh Circuit’s reasoning contrary to Rizo , and held that the university’s reliance on salary compression qualifies as a factor other than sex that “comports with current Seventh Circuit precedent.” 238 And in Stice v. City of Tulsa , 239 a city employer tried to justify a pay disparity by arguing that plaintiff’s comparators were started with higher starting salaries, and that its system of percentage-based salary increases provides a non-discriminatory explanation for the differences in pay. 240 Plaintiff argued (citing Rizo v. Young ) that “courts have rejected reliance on higher starting salaries as a ‘job related’ factor that can be used to explain differences in pay between male and female employees. ” 241 However, the court held that neither Rizo , nor the Tenth Circuit has held that the use of prior salary history can never be a consideration to justify a pay disparity, just that it cannot be the only consideration. 242 This issue also sometimes comes up not as a matter of higher prior salary per se , but rather as increased negotiating leverage or bargaining power when starting salaries are set. For example, in Briggs v. University of Cincinnati , 243 the District Court for the Southern District of Ohio pointed to salary history and bargaining power as justifications of a pay disparity. In that case, a Compensation Analyst for a university alleged that he was paid less than a female in the same position in violation of the EPA. The university conceded that plaintiff had established a prima facie case, given the similarity of the positions. However, the court held that the employer had established that the wage disparity was the result of a factor other than sex because, among other things, plaintiff’s comparator had been working for the university much longer when hired into the Compensation Analyst position and commanded a higher salary as a result. 244 Moreover, she refused to take the position for less than a salary that was already higher than plaintiff’s at the time of hire. The court held that the university’s proffered reasons to explain the wage disparity, 236 Kellogg v. Ball State Univ. , No. 1:18-CV-2564-TAB-TWP, 2020 WL 707846 (S.D. Ind. Feb. 12, 2020). 237 Id. at *1. After plaintiff brought suit, the university defended its pay practices by arguing that plaintiff’s chosen comparator had extremely positive letters of recommendation, 21 years of prior classroom teaching experience, numerous teaching honors and publications, an impressive interview, prior experience teaching AP courses, and, critically for the court’s decision, a high former salary. Id. at *2. The university also cited market forces and salary compression as factors other than sex explaining the pay disparity. Relying on the Ninth Circuit’s reasoning in Rizo , the plaintiff argued that the university’s salary compression theory only served to “perpetuate past wage discrimination against her by pulling it into the present.” Id. at *3 (quotations omitted). 238 Id. 239 Stice v. City of Tulsa , No. 17-CV-261-CVE-FHM, 2018 WL 3318894 (N.D. Okla. July 5, 2018). 240 Id . at *4. The city explained the differences in pay as resulting from tenure, experience, and education level, among other things. Id. at *2. However, the company’s HR department then conducted a salary review of plaintiff’s department, which determined that plaintiff’s salary was significantly below other employees within her job position. Id. Plaintiff’s salary was increased as a result, but not to the level of other male colleagues. 241 Id. 242 Id. (citing and quoting Angove v. Williams–Sonoma, Inc. , 70 F. App’x 500, 508 (10th Cir. July 8, 2003)). The city claimed that it had based starting salaries on other factors, such as education and experience. Id. at *5. After reviewing the relative levels of education and experience between plaintiff and her comparators, the court rejected this defense, holding that although the city had “offered a gender neutral explanation for [comparator’s] salary that is over $12,000 greater than plaintiff’s, and a reasonable factfinder ‘could’ credit this explanation,” that explanation was “not so convincing that any rational jury would find in favor of defendant on plaintiff’s EPA claim.” Id. ; see also Thomas v. Gray Transp., Inc. , No. 17-CV-2052-KEM, 2018 WL 6531661, at *7 (N.D. Iowa Dec. 12, 2018) (holding that male dispatcher who had worked for the company as a driver manager and had kept his previous salary when he became a dispatcher meant that the comparator’s “prior work (and salary) for [employer] establish that his higher salary was based on a factor other than sex”); Ouzts v. Leebos Stores, Inc. , No. 1:16-CV-277, 2018 WL 4495217, at *3 (W.D. La. Sept. 19, 2018) (“[I]t is undisputed that in order to recruit [comparator], [employer] agreed to pay [comparator] the same salary and vacation he had been earning at Coca-Cola. [Comparator’s] significant prior experience and demand that his Coca-Cola compensation package be matched are legitimate, non-discriminatory factors that fall within the catch-all exception.”). 243 Briggs v. Univ. of Cincinnati , No. 1:18-CV-552, 2020 WL 5760437 (S.D. Ohio Sept. 28, 2020). 244 Id. at *7.