©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 23 expert had failed to apply the proper criteria for assessing the potential wage differential under the California Fair Pay Act, because the law only prohibits wage disparities for employees doing “substantially similar work” when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.129 The court rejected plaintiffs’ expert’s model and denied class certification, holding that it “does not properly analyze the pay rates of putative class members and juxtapose those against employees who perform substantially similar work.”130 Similarly, in Kassman v. KPMG LLP,131 the court rejected an employees’ attempt to use statistics to prove class-wide wage discrimination because the statistical analysis could not adequately account for the differences among individual employees’ job duties and working conditions. Plaintiffs’ expert performed a regression analysis and found statistically significant differences in compensation between men and women, controlling for job level, experience, education, job location, and performance ratings.132 But the employer’s expert concluded that no statistically significant disparity exists when employees were appropriately classified according to specialized job categories.133 The court concluded that plaintiffs had failed to establish that pay and promotion practices are uniform across the company, so there was no reason to rely on aggregated, nationwide statistics.134 New Theories of Wage Discrimination. Some plaintiffs have quite openly attempted to expand the boundaries of wage discrimination claims, arguing they were unfairly paid even if they were unequivocally paid more than comparators of the opposite sex. For example, in Traudt v. Data Recognition Corp.,135 a female sales representative alleged she was paid less than similarly situated males because her employer had improperly diverted her commissions to other employees, while this had not happened to male employees. The employer paid sales employees according to an incentive plan that included a salary component and a target amount of incentive compensation, which would vary depending on whether and to what extent they met their sales quotas.136 Plaintiff admitted the incentive plan was not inherently discriminatory, and the court found that she had failed to provide evidence of a male comparator in the same position who was paid more than her. Plaintiff nevertheless claimed discrimination because she said some of the credit and commissions she was owed were given to another female employee.137 The court held that this could not support an EPA claim because “Plaintiff provides no evidence that her circumstances were nearly identical to those of a better-paid employee who acted willfully or suggests that the defendant’s affirmative defense is pretextual.”) (emphasis omitted) (citing Boaz v. Fed. Express Corp., 107 F. Supp. 3d 861, 891 (W.D. Tenn. 2015) (“Although intent to discriminate is not a requisite element for making out an EPA claim, a showing of discriminatory motivation may be used to demonstrate that an affirmative defense on which the employer relies is in fact pretextual.”) (quotation omitted); Simpson v. Merchs. & Planters Bank, 441 F.3d 572, 580 (8th Cir. 2006)). 129 Bridewell-Sledge, 2018 Cal. Super. LEXIS 3879, at *44. 130 Id. at *47 (emphasis in original). Plaintiffs’ expert had attempted to control for location and job category using the EEOC’s EEO-1 categories to establish that any two individuals within the same EEO-1 category were performing “substantially similar work.” Id. at *44-47. The employer’s expert opined that because there are only ten such categories, they would, by necessity, tend to group employees within the same category who are demonstrably not performing “substantially similar work” within the meaning of California law. The employer’s expert noted, among other things, that “over 80 percent of the records in [plaintiff’s expert’s] analytic file fall into a single EEO-1 occupational category, [plaintiff’s expert’s] model has effectively no statistical control to situate employees with respect to their skill, effort and responsibility.” Id. at *45. Without the use of any statistical methodology to assess statutory violations on a class basis, the court would have to “individually review a class member's status and assess whether those employees perform ‘equal work’ under ‘similar working conditions’ or ‘substantially similar work when viewed as a composite of skill, effort, and responsibility.’" Id. at *48. 131 Kassman v. KPMG LLP, 416 F. Supp. 3d 252 (S.D.N.Y. 2018). In that case, plaintiffs sought to bring a class and collective action on behalf of more than 10,000 female Associates, Senior Associates, Managers, Senior Managers/Directors, and Managing Directors within the company’s Tax and Advisory Functions from 2009 to the present. Id. at 259. 132 Id. at 263-64. 133 Id. at 265. Rather, the data “reflects a heavier concentration of men in higher compensated units and heavier concentration of women in lesser compensated units.” Id. 134 Id. at 282. Moreover, because the employer allowed individual managers discretion over pay decisions, the court held that “there is no (non-discretionary) uniform causal mechanism for determining pay and promotion operating across the Proposed Collective. This means that there are likely 1,100 defenses to justify why the 1,100 opt-ins were paid as they were. Adjudicating the claims of the proposed collective in a single action would give rise to obvious procedural difficulties and could not assure fair treatment of any party involved.” Id. at 288. 135 Traudt v. Data Recognition Corp., No. 3:21-cv-02703-M, 2023 WL 3220196 (N.D. Tex. May 2, 2023). 136 Id. at *2. 137 Id. at *3.
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