Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 49 evidence used under the EPA burden is sufficient to establish a prima facie case under Title VII. ” 402 The court explained that under the burden shifting scheme of Title VII, “[t]he burden of production now shifts to the Defendant to articulate some legitimate, nondiscriminatory reason in light of the four exceptions outlined in the Equal Pay Act.” 403 The employer argued that the comparator’s salary had been set at a time when it needed to hire someone quickly or close that branch, and the comparator manager had made a “take it or leave it” demand that the company felt compelled to take. The court held that that satisfied the employer’s burden under the Title VII burden-shifting scheme “because an employer ‘need only articulate – not prove – a legitimate, nondiscriminatory reason,’” to meet its burden of production. 404 However, the employer was not able to rebut the EEOC’s claims that those purportedly legitimate reasons were merely a pretext for discrimination; the court found it “highly suspicious” that the employer’s reasons had merit in light of the fact that it had sometimes allowed even larger branches to operate for short periods of time without a manager . 405 Lawsuits brought under the EPA tend to be highly fact-driven and therefore notoriously difficult for employers to dispense with through motion practice before trial. This is especially true when it comes to EEOC-initiated litigation. 406 Several recent decisions are illustrative of this trend. For example, in EEOC v. Enoch Pratt Free Library , 407 the U.S. District Court for the District of Maryland denied an employer’s motion to dismiss an EPA lawsuit brought by the EEOC as a representative action on behalf of female librarian supervisors . 408 Then, on October 30, 2019, the District Court also denied cross-motions for summary judgment. 409 With respect to the motion filed by the EEOC, the District Court found that genuine issues of material fact persist regarding elements of the EEOC’s prima facie case. In particular, evidence showed that library supervisors perform a wide variety of job duties across various library branches: “Overall, the branches generally have varying responsibilities in light of their different physical plants, different clientele, and different community resources. . . . A factfinder should therefore assess whether the duties performed by [supervisors] are sufficiently similar to establish a prima facie case of unequal pay for equal work.” 410 With respect to the employer’s motion, the District Court applied the reasoning of the Fourth Circuit’s decision in EEOC v. Maryland Insurance Administration . 411 In that case, the EEOC alleged that the employer paid three former female fraud investigators less than it paid four former fraud investigators with 402 Id. at 647. 403 Id. at 647-48. 404 Id. at 648 (quoting Texas Dept. of Cmty. Affairs v. Burdine , 450 U.S. 258, 258 (1981)). 405 Id. at 648-49. 406 EPA lawsuits therefore put a premium on fact gathering, something that the EEOC typically excels at given its broad investigative and administrative subpoena powers. See, e.g., EEOC v. VF Jeanswear, LP , 769 F. App’x 477, 478 (9th Cir. 2019) (reversing the district court’s decision limiting an EEOC subpoena, holding that “there is no legal basis for limiting the scope of the relevance inquiry only to the parts of the charge relating to the personally-suffered harm of the charging party. Indeed, we have held otherwise. EEOC subpoenas are enforceable so long as they seek information relevant to any of the allegations in a charge, not just those directly affecting the charging party”). 407 EEOC v. Enoch Pratt Free Library , No. 17-CV-2860, 2019 WL 5593279 (D. Md. Oct. 30, 2019). 408 The employer argued that the EEOC did not include sufficient details regarding the job responsibilities of the male librarian supervisors and the female librarian supervisors to determine whether they were performing equal work. Id. at *5. But the court held that the EEOC had pled that librarian supervisors required the same educational and experiential qualifications, shared the same core duties of operating a branch library, managed moderate-sized staffs, and performed accompanying administrative duties. Id. at *6. From this, the court held that it was reasonable to infer that managing different branch libraries within the same city required the same substantive responsibilities in similar working conditions: “the plaintiff here did assert the job responsibilities of the employees at issue. The factor-by-factor comparison encouraged by the defendants is not necessary to state a plausible claim sufficient to survive a motion to dismiss.” Id. at *8. 409 EEOC v. Enoch Pratt Free Library , No. 17-CV-2860, 2018 WL 3660169 (D. Md. Aug. 2, 2018). 410 Id. at *5. 411 EEOC v. Md. Ins. Admin. , 879 F.3d 114, 124 (4th Cir. 2018).