©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 33 mere differences in pay and resources between her and her comparator were not sufficient to establish discriminatory intent.207 To be a valid comparator, the job content must also be similar regardless of the time period being examined. For example, in Jackson v. City of Cape Coral,208 a case alleging gender-based pay discrimination under both the EPA and Title VII, the court held that plaintiff could only establish her prima facie case from January 2020 onward, when she began performing the same essential job functions as her male comparator. For the period before January 2020, the court specifically found that the only proffered male comparator was "an inappropriate comparator for EPA purposes" because the plaintiff and proffered comparator performed materially different job duties within the city's inspection department, despite having similar job titles. The court emphasized that "the controlling factor under the Equal Pay Act is job content—the actual duties that the respective employees are called upon to perform," not job descriptions or titles.209 Successors or replacements in the same position can also be useful comparators to establish the “equal work” requirement.210 However, just as with predecessor comparators, the job must have remained the same since it was held by plaintiff. Courts are cognizant of the fact that the duties of a job can sometimes change simply because a different person, with different capabilities, holds the position. In Polak v. Virginia Department of Environmental Quality,211 the Fourth Circuit held that employees’ different levels of expertise and experience allowed one to take on different roles and responsibilities, which made his work unequal to a female colleague who was not qualified to take on those roles, even though they worked in the same position as team members under the same supervisor. In that case, a “coastal planner” of a state environmental agency alleged that she was paid less than a male employee she “worked closely with” and about whom she “believed . . . had the same position and that they were doing essentially the same work.”212 However, their supervisor testified that plaintiff’s comparator had “expertise in coastal hazards, sea level rise, and shoreline erosion,” which plaintiff did not have, and this allowed him to take on roles and responsibilities that plaintiff was not qualified to perform.213 The supervisor testified that “because of his background and experience, [comparator] was doing different and more complex assignments than those given to [plaintiff],” which included working on “more challenging issues” and “more difficult and complex grant applications.”214 Accordingly, the court held that plaintiff had 207 Id. A prima facie case under Title VII also requires the plaintiff to show facts giving rise to an inference of discriminatory animus, an intent requirement that is not required by the EPA. Although plaintiff had pointed to several allegedly discriminatory remarks, including that Washington, D.C. had “bad ... neighborhoods” and was “unseemly,” that the former Chairman of Goldman Sachs “grew up in a really bad neighborhood,” and that “the Obamas are disgusting,” the court held that those statements were “race and gender neutral”: “An employer or supervisor can comment that an urban area has bad neighborhoods or compliment a bank Chairman for having achieved success despite having come from a less privileged background without—by such comments—taking on the burden to justify (even through a burden of production) an adverse employment action for an employee.” Id. at *16-17. Moreover, “an employer or supervisor may make derogatory, but race and gender neutral, comments about a political figure including a President of the United States without giving rise to an inference of discrimination.” Id. at *17. 208 Case No: 2:22-cv-408-JES-NPM, 2024 WL 382392, at *4-5 (M.D. Fla. Feb. 1, 2024). 209 The court granted summary judgment on both the EPA and Title VII claims. Even for the period after January 2020 when the plaintiff established her prima facie case, the court found no genuine issue of material fact regarding the employer's legitimate, nondiscriminatory reasons for the pay differential. The city demonstrated that the male comparator's pay was protected by a municipal ordinance that maintained employees' existing pay grades upon reclassification, and that he possessed greater experience in well inspections. The plaintiff failed to produce evidence that these reasons were pretextual. 210 See, e.g., Spencer v. Austin, No. 19-cv-7404, 2021 WL 4448723, at *9-10 (N.D. Ill. Sept. 28, 2021) (holding that plaintiff sufficiently alleged that she and her comparator performed equal work because her comparator was her replacement in the same position, rejecting the employer’s arguments that the plaintiff and her replacement had different job titles and could not have worked in “similar working conditions” because their tenures did not overlap, noting that comparators are compared based on actual job duties and performance, rather than titles, and because “employees need not overlap to serve as useful comparators”); Mooberry v. Charleston S. Univ., No. 2:20-cv-769, 2022 WL 123005, at *7 (D.S.C. Jan. 13, 2022) (finding that plaintiff established a prima facie case where she pointed to her successor as coach of the women’s volleyball team as her comparator and where, “[u]pon a review of the record and in a light most favorable to the non-moving party, the Court finds that Plaintiff was required to perform all the additional duties outlined in [comparator’s] contract”). 211 Polak v. Va. Dep’t of Envtl. Quality, 57 F.4th 426 (4th Cir. 2023). 212 Id. at 428. 213 Id. at 430-31. 214 Id. at 431.
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