Developments in Equal Pay Litigation

50 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP comparable credentials and experience who were men. 412 The Fourth Circuit held that the EPA requires “that an employer submit evidence from which a reasonable factfinder could conclude not simply that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.” 413 The employer argued that it used the state's Standard Salary Schedule, which classifies each position to a grade level and assigns each new hire to a step within that grade level. The Fourth Circuit rejected this defense because it found that the employer exercised discretion each time it assigned a new hire to a specific step and salary range based on its review of the hire's qualifications and experience. 414 Similarly, in Enoch Pratt Free Library , the employer pointed out that it used a Managerial and Professional Society Salary Policy (“MAPS”) to determine compensation for newly hired library supervisors. 415 According to the employer, that policy is facially neutral, and clearly permitted the employer to pay the starting salaries that it did. 416 The Court held, however, that that policy did not necessarily compel any specific salary to be awarded to a new hire. 417 The MAPS policy left open the possibility that the employer could apply discretion with respect to setting starting salaries. 418 Applying Maryland Insurance Administration , the Court concluded that “[the EEOC’s comparator] was hired at a rate not only higher than the female [library supervisors] represented by the EEOC, but also significantly above the salary he had received during his first tenure at [employer]. Given these facts, combined with the inherent discretion within the MAPS policy, genuine factual questions exist about how defendants arrived at [the comparator’s] salary.” 419 The employer lost at trial. On December 23, 2020, after the conclusion of a five-day bench trial, the Court issued its conclusion that the employer had violated the EPA . 420 The EEOC easily met its burden to establish a prima facie case because the parties stipulated that the comparator’s salary was higher than that of each charging party . 421 The employer argued that each library branch differed with respect to circulation size, outreach efforts, and physical footprint, thus rendering the job duties of each library supervisor to dissimilar to support a finding that they performed equal work. The Court found, however, that the core job duties were the same, relying in part on evidence that the positions shared the same job description and supervisors often substituted for one another on a short- or long-term basis without requiring any additional training and without any alternation in pay . 422 The differences among library 412 Id. at 129. The EEOC presented evidence that while female investigators ended up earning $45,503 to $50,300 per year, the male investigators earned from $47,194 to $51,561 per year. Id. 413 Id. The Fourth Circuit also noted that the burden on the employer “necessarily is a heavy one.” Id. at 120. 414 Id. The employer also argued that the pay disparities were justified by the qualifications and experience of the comparators. This defense, too, failed. The Fourth Circuit emphasized that a viable affirmative defense under the EPA requires more than a showing that a factor other than sex could explain or may explain the salary disparity. Rather, the Fourth Circuit stated that the EPA requires that a factor other than sex actually explains the salary disparity. Id. at 123. 415 EEOC v. Enoch Pratt Free Library , No. 17-CV-2860, 2019 WL 5593279, at *3 (D. Md. Oct. 30, 2019). 416 Id. at *6. 417 Id. 418 Id. 419 Id. at *7. See also EEOC v. George Washington Univ. , No. 17-CV-1978 (CKK), 2019 WL 2028398, at *4 (D.D.C. May 8, 2019) (denying an employer’s motion to dismiss even though the complaint at issue did not explicitly allege how the positions at issue were equal with respect to skill, effort, and responsibility, holding that the complaint “straightforwardly pleads that [plaintiff] was paid less as Executive Assistant than [comparator] was paid as a Special Assistant for substantially the same job responsibilities”); EEOC v. Univ. of Miami , No. 19-CV-23131-Scola, 2019 WL 6497888, at *2 (S.D. Fla. Dec. 3, 2019) (denying a motion to dismiss claims brought by professors in the same department because the EEOC had supported its claims of pay discrimination with numerous allegations relating to the professors job duties, such as teaching classes and publishing books and articles, and allegations that the female professor had two more years of teaching experience and had published more works, and because the EEOC had alleged that both professors were in the same department and had been promoted to full professor at the same time after a review by the same committee based on the same criteria); EEOC v. Denton Cty. , No. 4:17-CV-614, 2018 U.S. Dist. LEXIS 175794, at *22 (E.D. Tex. Oct. 12, 2018) (denying cross motions for summary judgment, holding that it was “not convinced that [defendant] or the EEOC has met their respective burdens demonstrating that there is no material issue of fact as to the EEOC's claim for violation of the Equal Pay Act entitling it to judgment as a matter of law”). 420 EEOC v. Enoch Pratt Free Library , No. 8:17-CV-2860-PX, 2020 WL 7640845 (D. Md. Dec. 23, 2020). 421 Id. at *8. 422 Id. at *9.