22 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP male comparators and found that she had been paid more than two male comparators in her first year in their pay grade, and that other differences in pay were explained by other non-discriminatory factors of the employer’s compensation system.119 In contrast, courts may find statistical evidence persuasive when it is clear, specific, relevant, and unrebutted by the employer. In Celious v. Worley Limited,120 a single‑plaintiff EPA case, the court relied on pay‑disparity findings from an OFCCP compliance evaluation that identified plaintiff as one of several female Project Engineers paid significantly less than male counterparts. Since Worley offered no competing statistical analysis, no comparator evidence undermining the OFCCP findings, and no explanation for why the disparity persisted through the plaintiff’s 2020 termination, the court held that plaintiff presented sufficient evidence of a wage disparity to survive a summary judgment challenge. Proving Wage Disparities in Class and Collective Actions. In class and collective actions, the identification of a wage disparity is even more complex. The use of statistics to show disparities in pay across employee groups is often critical in such cases, though they must be rooted in appropriate comparisons. For example, in Spencer v. Virginia State University,121 the Fourth Circuit affirmed the dismissal of a case where a tenured Associate Professor in the Department of Sociology tried to use statistics to establish that she was paid less than term-appointed Associate Professors in other departments.122 The court noted the unique features of academia that present special challenges for the EPA claimant: “[p]rofessors are not interchangeable like widgets. Various considerations influence the hiring, promotion, and compensation of different professorial jobs.”123 The Fourth Circuit said that, in the academic context, “work is an exercise in intellectual creativity that can be judged only according to intricate, field-specific, and often subjective criteria.”124 Accordingly, an EPA plaintiff must provide the court with more than broad generalities to establish a claim.125 The Fourth Circuit held that plaintiff’s expert had failed to establish an actionable disparity between the pay of appropriate male and female comparators. “His efforts revealed no statistically significant disparity within each ‘school.’ If anything, this evidence undermines [plaintiff’s] claimed inference of discrimination.”126 In Bridewell-Sledge v. Blue Cross of California,127 a California state court based its denial of class certification on a close analysis of the parties’ competing expert reports.128 The court held that plaintiffs’ 119 Id. 120 Denise Celious v. Worley Ltd., 2025 WL 976601 (S.D. Tex. Mar. 31, 2025). 121 Spencer v. Va. State Univ., 919 F.3d 199 (4th Cir. 2019). 122 The district court had held, among other things, that the plaintiff had failed to establish that those positions were the same, noting that: “the functional responsibilities that comprised ‘teaching a class’ and the skillset required in doing so varied across all three departments.” Spencer v. Va. State Univ., No. 3:16-cv-989-HEH, 2018 WL 627558, at *9 (E.D. Va. Jan. 30, 2018). But the court also held that the analysis performed by plaintiff’s own expert showed that the university did not suffer from any systemic gender-related wage disparity. Id. at *10. Among other things, plaintiff’s expert found that plaintiff’s comparators were overpaid in comparison to their peers, including both male and female faculty members, and that there was not a statistically significant level of male faculty being paid more than their female counterparts by school. Id. The district court concluded that the “absence of systemic discrimination combined with improper identification of a male comparator suggests a failure to establish a prima facie case.” Id. (quoting Stag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 950 (4th Cir. 1995)) 123 Spencer v. Va. State Univ., 919 F.3d 199, 204 (4th Cir. 2019). 124 Id. at 205. 125 Id. 126 Id. at 206. 127 Bridewell-Sledge v. Blue Cross of Cal., No. BC477451, 2018 Cal. Super. LEXIS 3879 (Cal. Super. Ct. Aug. 28, 2018). Plaintiffs’ expert performed a regression analysis that sought to take account of race, sex, years of company service, age, and educational attainment to conclude that males were paid more relative to females in a manner that was both large in absolute magnitude of the pay differential, and statistically significant. 128 Id. at *39. California courts may consider statistical evidence as “indicators of a defendant’s centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.” Id. at *26 (quoting Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 333 (Cal. 2004)). Even though there is no requirement under the California Fair Pay Act or the federal EPA for plaintiffs to prove intentional discrimination or discriminatory animus, courts often allow the use of evidence—including expert statistical evidence—that would tend to demonstrate intentional discrimination. See also Storrs v. Univ. of Cincinnati, No. 1:15-cv-136, 2018 WL 684759, at *3 (S.D. Ohio Feb. 2, 2018) (“[Plaintiff] may present facts and argument regarding sex discrimination to the extent these facts (1) prove the elements of her EPA claim, (2) demonstrate that [employer] acted willfully, and (3) rebut [employer’s] affirmative defense that the discrepancy was based on a factor ‘other than sex.’ Although intentional discrimination is not an element of an EPA claim, courts typically allow evidence that demonstrates that the defendant
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