©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 17 Wage Rates or Total Compensation. The question of how to compare compensation can be quite complicated. For instance, litigants sometimes debate whether a court can find a wage disparity based on differences in base salary or wage rate alone, or whether it must also take into account and compare total compensation, including all bonuses, commissions, benefits, and other forms of remuneration. This is yet another seemingly simple legal question that has bedeviled the courts and given rise to many arguably conflicting decisions. In Owens v. American Water Resources, LLC,68 the District Court for the Southern District of Illinois dismissed an equal pay claim where the plaintiff earned more in total wages than her comparator, despite having a lower base salary. In that case, the plaintiff worked in Operations for a sewer line warranty provider. She alleged she was paid less than her predecessor, who worked in the same job, in the same location, and under the same title, because she received a lower base salary for the entire four years she held the position. The court rejected this argument because plaintiff’s total wages were higher than her predecessor’s. Citing the regulatory definition of “wages,” the court held: “under the Equal Pay Act, one must compare total compensation amounts, rather than base salaries.”69 The court found that plaintiff’s total compensation was approximately 7% higher than the average of the other comparators at the company and held against the plaintiff for this reason. “Thus, a review of the reported total compensation for [plaintiff] and [predecessor] does not establish that [predecessor] received higher compensation as required under the Equal Pay Act.”70 Compare this to Sempowich v. Tactile Systems Technology, Inc.71 In an appeal that was joined by the EEOC as amicus curiae in favor of plaintiff, the Fourth Circuit reversed a lower court’s decision that dismissed an equal pay claim because the plaintiff was paid more in total compensation than her comparators.72 According to the Fourth Circuit, “[t]he text of the Equal Pay Act unambiguously states that an employer may not ‘discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex.’”73 There was no need to consider the regulatory definition of “wages” because the statute clearly puts its emphasis on wage rates. In rejecting a focus on total compensation, the Fourth Circuit also held that the concept of rates could be more than just base salary. “The term ‘wages’ includes commissions because, just as with salary, an employer could not pay commissions to a female employee at a lower rate than a similarly situated male employee. This does not mean that all types of remuneration should be combined into one lump sum when comparing the earnings of a male and female employee.”74 Similarly, in Wiler v. Kent State University,75 the District Court for the Northern District of Ohio held that an equal pay claim must be based on a difference in base compensation rather than total compensation. In that case, a female head coach of a university’s field hockey team alleged that her employer violated the EPA and Title VII by paying her less than her male counterparts. However, her claim was based on the fact that other coaches at the same university earned a higher total compensation, which was the sum of 68 Owens v. Am. Water Res., LLC, No. 3:21-cv-01365, 2023 WL 6382368 (S.D. Ill. Sept. 29, 2023). 69 Id. at *10. 70 Id. See also Schrof v. Clean Earth, Inc., No. BPG-22-cv-1533, 2023 WL 3763984 (D. Md. June 1, 2023) (holding that outside salesperson had adequately alleged a wage disparity even though she and all outside salespeople were subject to the same commission plan, because she alleged males who met their goals received 20% commission and overages, while she did not). 71 Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643 (4th Cir. 2021). 72 In that case, a regional sales manager for a medical device manufacturer alleged she was paid less than a male comparator when comparing base salaries. The district court held that she failed to establish a prima facie case of pay discrimination because she was actually paid more than her comparator when comparing total compensation, meaning base salary plus commissions. Sempowich v. Tactile Sys. Tech., Inc., No. 5:18-cv-488-D, 2020 WL 6265076, at *23 (E.D.N.C. Oct. 23, 2020). The court applied the EEOC’s definition of “wages,” which includes all payments made to an employee whether provided as base salary, bonus, or any other form of compensation. Id. Plaintiff argued that including her incentive compensation would frustrate the purpose of the EPA because it would require “harder work for commissioned employees with lower base salaries to achieve equal pay.” Id. The court rejected that argument, holding that the EEOC’s definition of wages comports with the text of the EPA and Supreme Court and Fourth Circuit precedent. Id. at *23-24. 73 Sempowich, 19 F.4th at 655 (quoting 29 U.S.C. § 206(d)(1)) (emphasis in original). 74 Id. 75 Wiler v. Kent State Univ., 637 F. Supp. 3d 480 (N.D. Ohio 2022).
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