18 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP their pay, performance bonuses, and camp income.76 The court held that the proper inquiry in the Sixth Circuit focuses on rates of pay, rather than total compensation. The court further clarified that rates of pay in that case included base salaries and bonus rates but, not camp income, because coaches had no obligation to run a camp and could choose whether to do so. That meant the compensation earned from camps varied depending on factors over which the university had no control.77 “Where an employee exercises a significant degree of discretion or control over earning a portion of her income, that portion cannot comprise part of the common denominator for the base rate of pay. A contrary conclusion risks incentivizing strategic behavior for artificial or leverage purposes.”78 Non-Wage Components of Compensation. Questions also frequently arise as to what types of compensation, other than wage rates, can be compared to establish an actionable pay disparity.79 For example, in the high-profile case, Morgan v. U.S. Soccer Federation, Inc.,80 a group of professional women’s team players alleged they were paid less than male professional soccer players employed by the same organization. The compensation for women’s team and men’s team players was determined by different collective bargaining agreements (“CBAs”), and the women’s team alleged their CBA provided for lower bonuses than the men’s team.81 The employer pointed to players’ total compensation and argued that, when compared on a cumulative and average per-game basis, the women’s team players were paid more in total compensation than the men’s team players.82 The court found that the women’s team players’ focus on bonuses ignored the other benefits provided by their compensation arrangement, including guaranteed annual salaries and severance pay, which the male players did not receive.83 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.”84 As such, a pay disparity does not need to be based on the wage or salary components of compensation. Differences in benefits, such as the use of a company car, can also form the basis of an equal pay claim. For example, in Pate v. Medical Diagnostic Laboratories LLC,85 a senior sales executive for a pharmaceutical laboratory alleged she was paid less than male employees in the same position, even though they earned the same base salary, because they were given a company car while she was not. The employer argued that its refusal to provide a car to plaintiff was justified by several gender-neutral reasons. The court considered the claim on its merits and assessed whether defendant had established an affirmative defense. The court noted that the use of a company car was not automatic, that both male 76 Id. at 484. 77 Id. at 491. 78 Id. Using that metric, the court eliminated all but one of plaintiff’s chosen comparators because they were not paid at a higher rate than plaintiff, even though they earned higher total compensation. Id. at *492-93. The court left it to the jury to decide whether the final comparator’s position was truly equal to plaintiff’s position and whether the university had established its “factor other than sex” defense. Id. at 496. 79 Williamson v. Digital Risk, LLC, No. 6:18-cv-767-Orl-31EJK, 2020 WL 434954, at *5 (M.D. Fla. Jan. 28, 2020) (refusing to dismiss some discrimination claims, including a claim under Title VII, because plaintiff had introduced direct evidence of intentional discrimination, but with respect to her EPA claim, holding that the plaintiff had failed to produce evidence that male employees were entitled to a larger percentage of commissions than she received: “Plaintiff has not argued, much less shown, that the male employees were in fact paid more than her”). 80 Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635 (C.D. Cal. 2020). 81 Id. at 652. 82 Id. at 653. 83 Id. at 654. 84 Id. (citing 29 C.F.R. § 1620.12(a); 29 C.F.R. § 1620.11(a)). The Court also rejected plaintiffs’ reliance on an analysis of what they might have been paid if they had been compensated under the same terms as the men players’ CBA. “This approach—merely comparing what each team would have made under the other team's CBA—is untenable in this case because it ignores the reality that the [men players] and [women players] bargained for different agreements which reflect different preferences, and that the [women players] explicitly rejected the terms they now seek to retroactively impose on themselves.” Id. at 655. The court found that the history of negotiations between the women players and their employer showed that they had rejected an offer to be paid under similar terms as the men’s team and instead opted for different terms that provided benefits to the women players that were difficult to value: “One of the defining features of the [women players’] CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the [male players’] CBA, under which players are only compensated if they are called into camp to play and then participate in a match. It is difficult to attach a dollar value to this ‘insurance’ benefit, and neither party attempts to do so here.” Id. 85 Pate v. Med. Diagnostic Labs. LLC, No. 7:19-cv-126-FL, 2021 WL 965906 (E.D.N.C. Mar. 15, 2021).
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