24 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP is not a member of the protected class, because the alleged ‘better-paid employee’ is a member of the same protected class.”138 Moreover, the court held that plaintiff failed to establish that the “diversion” of commissions she complained of did not happen to male employees as well: “the evidence provided by Defendant indicates that, on occasion, both male and female employees received ‘adjustments’ to their total sales numbers prior to incentive awards being calculated.”139 Accordingly, her theory did not support any relief under the EPA. Many times, the more esoteric theories of wage discrimination involve plaintiffs who were actually paid more than their comparators. Plaintiffs have attempted to shoehorn such facts into an equal pay claim, often with little success. In Black v. State of Ohio Industrial Commission,140 a state agency’s Chief Legal Counsel brought an equal pay claim based on a comparison to her successor in the same position. The problem was that plaintiff’s final rate of pay was higher than her successor’s at the time he was hired. At the motion to dismiss stage, the plaintiff had skirted this inconvenient fact by alleging that, although her successor was hired at a lower wage, the employer had quickly increased his pay above hers. The court ruled at the time that “[a]n employer cannot evade liability under the Equal Pay Act merely by paying a male successor a ‘starting’ wage below that of a female predecessor, only to turn around and increase his pay above that of hers.”141 However, this theory did not pan out. Although plaintiff’s successor did receive a raise soon after hire, his new wage was still less than plaintiff’s final wage. Plaintiff also argued that her successor’s wages were increased more quickly than hers, noting that in her first three years on the job, her pay increased by 10.3% overall, for an annual increase of 3.4%, whereas her successor’s pay was increased by 14.7% overall, for an annual increase of 4.9% in his first three years on the job.142 The court rejected this argument, noting that plaintiff’s slower increase was explained by factors other than sex, namely, a pay freeze imposed by the governor during a portion of her employment, and other political factors that allowed for a faster increase during her successor’s tenure.143 Similarly, in Moore v. Penfed Title, LLC,144 the court rejected a plaintiff’s Title VII wage discrimination claim based on his theory that he was not paid enough above comparators who held positions with less responsibility than him. “[Plaintiff] cannot make out the fourth prima facie element of a Title VII unequal compensation discrimination claim with respect to his overall salary. His argument boils down to an objection that he was not awarded enough of a premium above all other . . . employees for his unique role within the organization. In this respect, the Court will not second guess [employer’s] compensation decisions absent a prima facie showing of compensation discrimination.”145 Similarly, in Wentzel v. Williams Scotsman Inc.,146 although the court held that the plaintiff had established that the work of two Account Executives was “substantially equal,” summary judgment was granted to the employer because it turned out that plaintiff actually earned more money than her male comparator.147 The plaintiff argued that she had to work significantly harder than her male comparator in a manner that was disproportionate to her additional compensation. The court held that: “[e]ven assuming that [plaintiff] had to work harder than 138 Id. 139 Id. 140 Black v. State of Ohio Indus. Comm’n, No. 2:21-cv-2987, 2023 WL 5935650 (S.D. Ohio Sept. 12, 2023). 141 Id. at *11. 142 Id. at *12. 143 Id. 144 Moore v. Penfed Title, LLC, No. 1:20-cv-0867, 2021 WL 2004785 (E.D. Va. May 18, 2021). In that case, a Vice President of a credit union alleged he was discriminated against on multiple grounds, including with respect to compensation. Proceeding under Title VII, the plaintiff alleged that he was paid “a relatively low salary” due to discrimination against him, that he was wrongfully denied a 5% year-end bonus, and that his supervisor refused to give him a performance evaluation that would have allowed him to receive a bonus or merit increase. Id. at *3. 145 Id. at *5. 146 Wentzel v. Williams Scotsman Inc., No. 18-cv-02101-PHX-SMB, 2020 WL 1158547 (D. Ariz. Mar. 10, 2020). The plaintiff was the only female Account Executive employed at a modular office space provider. Her comparator was the only other Account Executive working at the same office, who was male. 147 Id. at *3-4.
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