30 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP However, in Heatherly v. University of Alabama Board of Trustees,183 the Eleventh Circuit upheld a decision holding that a job evaluation system, on its own, could not establish a prima facie EPA violation. The Eleventh Circuit agreed with the district court in refusing to credit plaintiff’s claim that the employer valued all jobs within the same pay grade equally, noting that the salaries within plaintiff’s own pay grade ranged widely.184 After comparing plaintiff’s job duties versus those of her comparators side-by-side, the Eleventh Circuit concluded that, “a reasonable juror could not find that [plaintiff] engaged in work that was substantially similar to that performed by her alleged comparators.”185 A court’s tendency to look beneath formal job classifications cuts both ways; plaintiffs can sometimes use this to show they performed equal work to comparators in a more advanced pay grade or level. For example, in Gallaway v. Rand Corp.,186 a Contract Administrator at a research organization alleged she was paid less than male Contract Administrators in her same department, even though she was employed at the second level of a four-level system and was comparing herself to male employees in the third level. The Court concluded that a reasonable jury could find that she performed equal work as her male comparators because “[t]here is evidence that she performed the same duties and required the same substantive level of supervision as the CA IIIs in the same department where [comparators] worked, and she handled a case load heavier than all CAs in the department.”187 In contrast, in Badgerow v. REJ Properties, Inc.,188 the Fifth Circuit held that plaintiff had failed to point to evidence that her job circumstances were “nearly identical” to her proffered comparators.189 “Because [plaintiff] points us to no evidence of how her job duties compared to the senior AFAs’ initial job duties, she cannot use the alleged Professors.” Id. Finally, the court pointed to the defendant’s merit system for awarding pay increases, which evaluated professors in terms of teaching, research, and service. The court noted that “While [Plaintiff] does not dispute any of her performance evaluations and she often received above standard ratings, many of the other Full Professors consistently received higher performance ratings than [Plaintiff].” Id. 183 Heatherly v. Univ. of Ala. Bd. of Trs., 778 F. App’x 690 (11th Cir. 2019). In that case, the Director of Human Resources for a university brought a federal EPA claim alleging she was paid less than three male employees in director-level positions. Plaintiff argued that the university used a job evaluation system, the Mercer System, to establish pay grades for different jobs based on such factors as knowledge and experience, job complexity and creativity, and physical demands and working conditions, in accordance with standards determined by the university. Heatherly v. Univ. of Ala. Bd. of Trs., No. 7:16-cv-00275-RDP, 2018 WL 3439341, at *13 (N.D. Ala. July 17, 2018). Because the use of that system established the same pay grade for her position versus those of her male comparators, she argued that this established the “equal work” prong of her prima facie case. Id. The court disagreed, holding that binding precedent forced it to look at actual job content to determine whether the skill, effort, and responsibility required is substantially equal; it could not merely rely on a job evaluation system. Id. Moreover, because the job evaluation system allowed for wide salary ranges even within the same pay grade, this showed that “an employee’s categorization into a pay grade does not pinpoint that employee’s exact salary and that multiple employees within the same pay grade may have and earn varying salaries.” Id. at *14. 184 Heatherly, 778 F. App’x at 692. 185 Id. at 693. 186 Gallaway v. Rand Corp., No. 2:18-cv-01379-RJC, 2020 WL 1984312 (W.D. Pa. Apr. 27, 2020). The employer maintained four levels of Contract Administrators. The four levels had the same job description but were supposed to differ in terms of the level of complexity of the work and the amount of supervision required, as well as the prerequisites for levels of education and years of work experience. Id. at *2. The employer introduced evidence that showed that there were at least three female Contract Administrators at the third level who earned more than Plaintiff based on their experience and the increased responsibilities of that level, and that no Contract Administrator at the second level earned more than Plaintiff. Id. at *11. However, the Contract Administrator Team Lead testified that plaintiff performed the same duties and required the same level of supervision as third level Contract Administrators. Statistics also verified that plaintiff handled the most awards and the highest aggregate total of grant money of all Contract Administrators. Id. at *12. 187 Id. at *12. 188 Badgerow v. REJ Props., Inc., 974 F.3d 610 (5th Cir. 2020). In that case, a female financial advisor working at a franchise financial advisory firm alleged she was paid less than other male assistant financial advisors. She was paid on a salary draw plus commission basis, meaning that she had to repay her salary draw by deducting it from commissions earned. She alleged that other male assistant financial advisors were paid on a salary plus commission basis, meaning that they were able to keep their salary on top of their commissions. The court granted summary judgment in favor of the employer, however, because plaintiff’s comparators all had significantly more seniority than plaintiff and had significantly larger books of business than plaintiff, who was new to the business. Moreover, those comparators to whom plaintiff was most similar had, in fact, been paid on the same salary draw plus commission basis as plaintiff. Badgerow v. REJ Props., Inc., 383 F. Supp. 3d 648, 664 (E.D. La. 2019). 189 Id. at 617.
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