32 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP the extra responsibilities undertaken by plaintiff’s comparator made their jobs unequal, and was also sufficient to establish the employer’s “factor other than sex” defense. The court concluded: “even if [employer] should have paid [plaintiff] some extra money because of her additional responsibility for ‘enterprise account managers,’ that fact is irrelevant to the clear conclusion that [comparator’s] and [plaintiff’s] jobs were meaningfully different and thus not ‘equal’ under the EPA.”200 Same Job; Different Time Period or Circumstances. Because the evaluation of “equal” or “similar” work is so fact-specific and often difficult to prove, plaintiffs may attempt to rely on various proxies to establish that requirement. One approach that is sometimes successful is to compare plaintiff’s pay with a predecessor who held the same position. This will often be sufficient to establish equality of work, unless there have been changes in duties or levels of responsibility. In Kling v. Montgomery County, Maryland,201 for example, the court held that an EPA plaintiff can establish a prima facie case by comparing her work and job responsibilities to a comparator’s position and responsibilities from the past—even those that are well before the statute of limitations for her claim—and even if the comparator no longer holds that position. The court held it is consistent with the purpose of the EPA “to consider the wages that a comparator previously received for substantially similar work; the Court should not have to disregard a gender-based discrepancy in salaries simply because the higher paid position has evolved or no longer exists.”202 The different statutes of limitations for EPA and Title VII claims can be critical when plaintiffs attempt to compare themselves to past positions. In Boatright v. U.S. Bancorp,203 a Managing Director of a financial services firm alleged, under the EPA and Title VII, that she had been paid less than a male comparator. The court held that she could not establish a prima facie case under the EPA because, during the entire relevant time period for that statute, her chosen comparator was her superior, having been promoted to chief of the group in which she was employed.204 As her superior, it was clear that his job was not substantially equal to hers.205 Title VII, however, has a longer statute of limitations. For some of the relevant period, plaintiff and her male comparator shared the same Managing Director job tile. This was enough to establish that he was a proper comparator under the minimal burden required by Title VII.206 Nevertheless, the court held that plaintiff had failed to show discriminatory animus (as required by Title VII but not by the EPA), finding that 200 Id. (emphasis in original). See also Miller v. Sam Hous. State Univ., No. H-15-cv-2824, 2019 WL 4758357 (S.D. Tex. Sept. 30, 2019), which held that a tenure-track Assistant Professor had failed to establish her job responsibilities were substantially similar to her chosen comparator, another Assistant Professor in the same field, because her comparator had elevated job responsibilities and was a licensed psychologist with clinical supervisory responsibilities. Id. The university showed that during the time that plaintiff did not have that license, it was required to devote extra resources to assist her, such as assigning a licensed psychologist to help supervise her students. Id. The district court concluded: “[b]ecause [comparator] did not require those extra resources in supervising his students, their work was not equal.” Id. That decision was reversed in 2021, however, and even reassigned to a different district court judge, after the Fifth Circuit called into question the comments and actions of the district court throughout the course of the litigation, holding that “the [district court’s] discovery restrictions suffocated any chance for [plaintiff] fairly to present her claims.” Miller v. Sam Hous. State Univ., 986 F.3d 880, 892 (5th Cir. 2021). 201 Kling v. Montgomery Cnty., Md., 324 F. Supp. 3d 582 (D. Md. 2018). In this case, a Hispanic Liaison for the Montgomery County Police Department requested a reclassification of her position to a higher pay grade, pointing to a male county employee who she alleged held a similar position at a higher pay grade. Id. at 588. After the county pointed out that the male comparator’s current position included significant contract monitoring, training, and other responsibilities beyond plaintiff’s role, she pointed to the position the comparator held from 2004-2008. Id. at 591-92. Although the court held that the plaintiff’s current position and the male comparator’s earlier position “share a common core of tasks,” the court still found differences in roles and responsibilities that precluded plaintiff’s prima facie case. Id. at 595-96. 202 Id. at 592. See also Powell v. New Horizons Learning Solutions Corp., No. 17-cv-10588, 2018 WL 6571216, at *5 (E.D. Mich. Dec. 13, 2018) (“If a female employee is paid less than a male predecessor, the Sixth Circuit permits claims of unequal pay.”) (citing Conti v. Am. Axle, 326 Fed. App’x 900, 914 (6th Cir. 2009)). 203 Boatright v. U.S. Bancorp, No. 18-cv-7293, 2020 WL 7388661 (S.D.N.Y. Dec. 16, 2020). 204 Id. at *12. 205 Among other things, plaintiff’s supervisor “served as the leader and supervisory principal of the San Francisco office and supervised all employees of the [group]. He was in charge of monitoring the performance of all employees and evaluating them. Additionally, he was charged with developing and implementing the [group’s] revenue generation strategies.” Id. 206 The court noted that they shared the same title and internal grade within the employer’s hierarchy, occupied the same level on the company’s organization chart, and had the same job description when hired. Id. at *16.
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