Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 9 facie case in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale. ” 44 But, “[w]hen there is only a single opposite-gender employee with similar work, it is appropriate to compare the plaintiff's pay against that of a single employee.” 45 In his new complaint, the plaintiff had alleged that he was paid less than the only other Associate Vice Chancellor of Student Affairs who held that position during the relevant time period. This was disputed by the employer, but the court declined to consider its evidence at the motion to dismiss stage. On the strength of plaintiff’s refined pleading, the court allowed the case to proceed, holding that “[i]t is reasonable to conclude that two associate vice chancellors overseeing the same area of responsibility (i.e., student affairs) would have the same job responsibilities” and that the plaintiff had alleged that he was paid less than his female counterpart. 46 Questions also frequently arise regarding what types of compensation should be compared to establish a wage disparity, and even what counts as “compensation” at all. A pay disparity does not have to be based on the wage or salary components of compensation. For example, in Perdue v. Rockydale Quarries Corp. , 47 the court held that a female supervisor had adequately alleged a pay disparity based on her claim that she was allowed to use a company vehicle only for business travel while her male predecessor in the same position had been allowed to use a company vehicle for business travel and his commute to work. 48 The question of how to compare different types of compensation can be quite complicated and will often determine the outcome of a case. For example, in the high-profile case, Morgan v. U.S. Soccer Federation, Inc. , 49 a group of professional women soccer players alleged that they were paid less than male professional soccer players employed by the same organization. The court granted summary judgment for the employer for the seemingly simple reason that the women soccer players had failed to establish that they were in fact paid less than the men players. The compensation for women and men players were determined by different collective bargaining agreements (“CBAs”). The women soccer players alleged that their CBA provided for lower bonuses than the men’s team and sought to base their claims on an analysis of compensation they would have received if they had been compensated under the terms of the men’s team’s CBA. 50 The employer, on the other hand, pointed to players’ total compensation, arguing that when compared on a cumulative and average per-game basis, the facts showed that the women soccer players were paid more in total compensation than the men soccer players. 51 The court held that plaintiffs’ proposed method of determining a wage disparity was contrary to the EPA. It found that the women players’ focus on bonuses ignored the other benefits provided by their compensation arrangement, including guaranteed annual salaries and severance pay that the male players did not receive. 52 The court concluded that “[t]o consider these bonus provisions in isolation would run afoul of the EPA, which expressly defines ‘wages’ to include all forms of compensation, including fringe benefits.” 53 44 Id. at 229 (quoting Hein v. Or. Coll. of Educ. , 718 F.2d 910, 916 (9th Cir. 1983)). 45 Id. 46 Id. at 230. 47 Perdue v. Rockydale Quarries Corp. , No. 7:18-CV-00416, 2019 WL 2216527 (W.D. Va. May 22, 2019). The court concluded that this was sufficient to allege a claim under the EPA: “While [employer] may ultimately disprove these allegations or establish that the alleged disparity was justified by a reason other than gender, the court concludes that the allegations are sufficient to withstand the defendant’s motion to dismiss.” Id. at *6. 48 Id. at *1. 49 Morgan v. U.S. Soccer Fed’n, Inc. , 445 F. Supp. 3d 635 (C.D. Cal. 2020). 50 Id. at 652. 51 Id. at 653. 52 Id. at 654. 53 Id. (citing 29 C.F.R. § 1620.12(a); 29 C.F.R. § 1620.11(a)).