Developments in Equal Pay Litigation

32 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP including the comparator’s salary negotiations and higher prior salary, were recognized as legitimate justifications by the Sixth Circuit . 245 In another case, Duncan v. Texas Health & Human Services Commission , 246 an employer attempted to justify a salary disparity by arguing that a male comparator possessed particularly valuable work experience and the employer had to match his private sector salary. 247 The court rejected that argument, holding that “a reasonable factfinder could reject [employer’s] position that the salary disparity was the result of a factor other than sex and find [employer] discriminatorily applied its negotiation policy by allowing [plaintiff] greater latitude to negotiate.” 248 In Grigsby v. AKAL Security, Inc. , 249 on the other hand, the District Court for the Western District of Missouri held salary negotiations, without more, established an employer’s affirmative defense, concluding: “there are no facts which would allow a fact finder to find that [employer’s] decision to pay [plaintiff] more than [comparator] in the Director of Airport Operations position was based on gender because his salary was set through negotiations and he was the best available person for the job, necessitating a higher pay.” 250 3. Other Affirmative Defenses A “factor other than sex” is the most commonly asserted defense in equal pay litigation across the country. The other defenses are available, however, and can be just as successful at stemming equal pay litigation before trial. If employers choose to rely on a seniority or a merit system, or a system that bases pay on the quantity or quality of output, they must be careful that those systems are well documented and communicated to employees. A system that appears ad hoc or that is inconsistently applied risks being met with skepticism by a court. For example, in Brunarski v. Miami University , 251 the District Court for the Southern District of Ohio held that a merit system that used vague criteria that were inconsistently applied could not justify a wage disparity. In that case, two female university professors alleged that they were paid less than comparable men. Among other things, the university attempted to justify the pay disparity as the result of a merit- based system . 252 It argued that plaintiffs’ comparators received larger merit raises because of their involvement in study abroad programs and because of exceptional performance . 253 The court held that the university had failed to establish this affirmative defense. Among other things, the court found that the standards for awarding so-called “super-merit” raises were vague and contradictory. 254 There was no evidence to show that the factors cited by the university had been used previously to award super-merit 245 Id. 246 Duncan v. Tex. Health & Human Servs. Comm’n , No. 17-CV-23-SS, 2018 WL 1833001 (W.D. Tex. Apr. 17, 2018). In that case, two female nurses and one male nurse applied and were hired into the same nursing position but at different salary levels. Id. at *1. The employer’s usual practice was to offer each applicant the minimum starting salary for the position and begin salary negotiations from there. Id. However, the male applicant was offered a higher salary initially because of his higher private sector salary. Id. at *2. The female employees argued that the male employee was paid more solely because of his gender and his prior salary. Id. at *3. 247 Id. 248 Id . at *4. The court noted that “it is an open question in the Fifth Circuit whether negotiation even qualifies as a ‘factor other than sex,’” noting that “several circuits have found that employers may not seek refuge under the ‘factor other than sex’ exception where the defendant’s sole justification for a pay disparity is an applicant’s prior pay.” Id. at *4 n.3 (citing Rizo v. Yovino , 887 F.3d 453 (9th Cir. 2018), rev’d , 139 S.Ct. 707 (2019)) . 249 Grigsby v. AKAL Security, Inc. , No. 5:17-CV-6048-DGK, 2018 WL 3078769 (W.D. Mo. June 21, 2018). In that case, a privately- contracted airport security screener alleged, among other things, two claims under the federal EPA. The employer did not dispute her prima facie case, but argued that the wage disparity could be explained by the fact that her and her comparators’ salaries were set through salary negotiations. Id. at *7. 250 Id. ; see also Smith v. Office of the Att’y Gen., State of Ala. , No. 2:17-CV-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020) (finding that employer met its burden to establish that wage disparity was due to factor other than sex where the evidence showed that male comparators had “made it known that they had no interest in positions at the OAG if their overall compensation was not commensurate with what they were earning at the FBI”). 251 Brunarski v. Miami Univ. , No. 1:16-CV-311, 2018 WL 618458 (S.D. Ohio Jan. 26, 2018). 252 Id. at *10. 253 Id. 254 Id. at *11.