©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 31 disparity between her salary and the senior AFAs’ starting salaries to further her wage discrimination claim.”190 Same Duties; Different Levels of Responsibility. Sometimes courts will look to employees’ different levels of responsibility or expectations to determine they perform different jobs, even where their job duties are the same or similar. This can be the case when one employee is part-time and another is fulltime, or where one is temporary and the other is permanent.191 In Martley v. City of Basehor,192 for example, a male City Administrator alleged he had been discriminated against when his employer paid more to his female successor. Although plaintiff and his comparator worked at the same job, plaintiff worked in a part-time capacity while his comparator/successor was full-time. The plaintiff also worked as the Police Chief while serving part-time as the City Administrator, and the evidence showed that his first responsibility was to be the Police Chief, and he was only serving temporarily as the City Administrator until a new full-time Administrator could be hired.193 And although the duties and responsibilities of the City Administrator did not change from plaintiff’s tenure to his successor’s tenure, the scope of the work and expectations of plaintiff were different due to the fact that he was also serving as Police Chief.194 The court held that this was sufficient to establish that the positions were not equal: “although the job description for City Administrator did not change from [plaintiff] to [comparator], the expectations for the job did change, along with the effort required, and it changed because [plaintiff] worked the job part-time and [comparator] worked it full-time.”195 Similarly, in Presnell v. Sharp Electronics Corp.,196 a General Sales Manager (“GSM”) alleged she was discriminated against with respect to pay, among other things, pointing to five male GSMs as comparators. The court first found that there was one compensation plan for all GSMs.197 For at least some of the years at issue, the plaintiff was paid more than all but one of the other male GSMs. And the one who made more money was given additional compensation for continuing to directly supervise sales employees after the employer did not hire a Sales Manager to replace him when he became a GSM. Plaintiff, on the other hand, did not retain any direct responsibility over sales employees. But she did retain direct responsibility over account managers (not a direct sales position), which she argued made her level of responsibility comparable to the comparator GSM.198 The court disagreed, noting the high bar required of EPA plaintiffs to show equal work: “the Fourth Circuit has specifically held that the EPA requires that the two comparators have ‘virtually identical’ / ‘substantially equal’ jobs.”199 By that standard, 190 Id. See also Wilson v. Wilkie, No. 2:18-cv-515, 2020 WL 2128613, at *8 (S.D. Ohio May 5, 2020) (finding that a Recreation Assistant paid at a GS-5 level of the General Schedule of federal government salaries failed to show that he performed substantially equal work to employees serving in the same position but at the GS-6 level: “Plaintiff's engaging veterans in informal games and conversation is not substantially equal to the structured therapies provided by the GS-6s, who used their prior experience as nursing assistants to monitor veterans’ cognitive and physical limitations and work with the Recreation Therapists to modify the veterans’ care plans accordingly”). 191 For an example of differences between temporary and permanent employees, see, e.g., Mayorga v. Marsden Bldg. Maint., LLC, No. 4:20-cv-00371, 2022 WL 887234 (S.D. Iowa Feb. 24, 2022) (holding that a temporary employee hired as a general cleaner, whose job duties included “sweeping, mopping, dusting, vacuuming, restocking restrooms, and trash disposal,” had not established a prima facie case by comparing herself to a permanent employee: “The record reflects that Plaintiff's pay was determined by factors other than sex: she was a temporary employee and not fully trained”); see also Santiago v. Meyer Tool Inc., No. 1:19-cv-032, 2022 WL 3908954 (S.D. Ohio Aug. 30, 2022) (rejecting plaintiff’s argument that male comparators did equal work from the simple fact that they would sometimes fill in for her when she was not at work: “The question is what skills, effort, and responsibility the male machinists possessed to perform their position,” and, “Plaintiff provides no specific evidence of the male machinists’ skills, efforts and responsibilities, and, thus, the Court is unable to make an overall comparison between Plaintiff and the comparators”). 192 Martley v. Basehor, No. 2:19-cv-02138-HLT, 2022 WL 16714127 (D. Kan. Nov. 4, 2022). 193 Id. at *6. 194 Id. at *8. 195 Id. But see Kent-Friedman v. N.Y. State Ins. Fund, No. 18-cv-4422(VM), 2023 WL 6292693, at *15 (S.D.N.Y. Sept. 27, 2023) (holding that the fact that an employee was serving as an Assistant Director temporarily in an acting capacity could not justify paying that employee less than person who was eventually hired into that role permanently, noting that the plaintiff had served in the Acting role for two years and had done so with the expectation that it would lead to a permanent position, which evidence was “sufficient to create an issue of material fact as to whether [plaintiff’s] service in the Acting Assistant Director role was, for EPA purposes, truly temporary”). 196 Presnell v. Sharp Elecs. Corp., No. 5:21-cv-00107-KDB-DCK, 2022 WL 17683126 (W.D.N.C. Dec. 14, 2022). 197 Id. at *7. 198 Id. 199 Id.
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