Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 33 raises or any other type of raise . 255 Moreover, the court found that the university’s application of the factors ostensibly used to justify the super-merit raises were not “commensurate with satisfaction” of those factors. 256 The court found a number of inconsistencies in terms of how those factors were supposed to affect the award of raises, versus how they were actually applied . 257 Finally, the court analyzed whether the university had a legitimate business reason for relying on the factors it applied to determine super-merit raises. Although the university had articulated a legitimate reason for those factors, “the same could be said for almost any individual factor it chose to now focus on that somehow relates to teaching, research, or service.” 258 Given the lack of evidence that the university’s factors had ever been communicated to professors prior to their use, and that they deviated from the standard factors used for other raises, the court held that the university “must show that there was an actual legitimate business purpose of Miami or the FSB for its focus on these factors to the exclusion of other factors typically considered when awarding a merit raise under the standard factors. ” 259 Having failed to do so, the court concluded that the university had failed to demonstrate the existence of a bona fide merit system. Proper and consistent documentation of how and why a merit-based system is applied often goes a long way toward helping an employer establish that defense. For example, in Summy-Long v. Pennsylvania State University , 260 the Third Circuit affirmed dismissal of a female physician’s wage claim because, among other things, numerous items in the record “reflected a lack of academic performance in comparison to her colleagues.” 261 Among other things, she had been urged to increase publications and to obtain external funding to support her research. She also “failed to apply to renew her National Institute of Health grant even after being reminded repeatedly for three years by her superior.” 262 The court held that this evidence established that “[t]he difference in [her] salary compared to her male coworkers resulted from, among other things, her lack of publications and failure to obtain external funding. ” 263 4. Pretext Even if an employer succeeds in establishing one of the enumerated affirmative defenses, a plaintiff may still succeed on an equal pay claim if he or she can show that the proffered reason for the wage disparity is merely a pretext for discrimination. Inconsistent application of work policies, as well as shifting and inconsistent testimony regarding the proffered justifications, are red flags that can lead to a finding of pretext. For example, in Clark v. Vivant Solar, Inc. , 264 an HR employee alleged that she was discriminated against on the basis of her gender and religion, including wage discrimination in violation of the EPA and retaliation in violation of Title VII. Among other things, plaintiff complained that she had been retaliated against when her employer relocated her position and did not offer her the opportunity to transfer along with that relocation after she complained of discriminatory treatment, including wage discrimination. 265 The employer had offered as justification for the relocation that there was benefit to having a regional HR 255 Id. 256 Id. 257 Id. 258 Id. at *12. 259 Id. 260 Summy-Long v. Pa. State Univ. , 715 F. App’x 179, 183 (3d Cir.). 261 Id. 262 Id. 263 Id. 264 Clark v. Vivant Solar, Inc. , No. 2:17-CV-144-JNP-JCB, 2020 WL 6873942 (D. Utah Nov. 23, 2020). 265 Id. at *12.