©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 35 where the work was performed were ‘basically the same.’”224 Accordingly, the court held that the averages were simply not probative evidence to satisfy an EPA claim. Plaintiffs also often turn to “pay bands” or other hierarchical levels within an organization to try to establish that employees within the same band or level perform equal work. Some plaintiffs have had success using such proxies, especially to survive motions to dismiss at the beginning of a lawsuit. For example, in Baker-Notter v. Freedom Forum, Inc.,225 the court held that a company’s own internal salary review was sufficient to demonstrate comparability among jobs sufficient to survive a motion to dismiss.226 When the case reached the summary judgment stage, the analysis was much more searching. The court first held that: “The ‘equal pay’ prong of the prima facie case is not seriously in dispute here, as the parties agree that [plaintiff] earned more than two other directors in the Operations department . . . and earned less than one . . . .”227 But the court found the responsibilities of plaintiff and her comparator extended over different aspects of the business and therefore “had vastly different content with respect to skills and responsibilities.”228 This was not contested by plaintiff; instead, plaintiff argued that she had a more demanding job than her comparator.229 But the court held that this argument was outside the scope of what it could remedy under the EPA, noting: “The Supreme Court has declined to endorse the theory of ‘comparable worth’ in EPA cases, ‘under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.’”230 While a court could be called upon to determine whether two jobs are substantially equal, asking a court to determine how much salaries of two unequal jobs should differ “strains the competence of the litigation process.”231 Federal vs. State Requirements. One of the most significant open questions in equal pay litigation is how courts will interpret the “substantially similar” standard that was created by several new state laws, as compared to the “equal work” standard found in federal law. At least one court has held that there is no daylight between those standards, despite the difference in wording. In an unpublished opinion, Pak v. GitHub, Inc.,232 the California Court of Appeal for the First District held that the new California standard was actually meant to realign California law with the federal standard. In that case, a former associate general counsel alleged she was underpaid compared to her boss, the general counsel, and another female comparator, a vice-president of law and policy, who did not share plaintiff’s Asian heritage. The Pak court held that the 2016 revision to California’s equal pay law “did not materially alter the definition of ‘equal work’ or the analysis of that issue reflected in prior state and federal cases.”233 Instead, “the amended standard was very close to that which has long been applied by courts under the federal Equal Pay Act,”234 so the court held that the law “simply brought that section in line with case law under the federal EPA.”235 Applying that standard, the court held that plaintiff failed to establish that her comparators performed substantially similar work. Among other things, it found that the general counsel 224 Id. 225 Baker-Notter v. Freedom Forum, Inc., No. 18-cv-2499 (RC), 2019 WL 4601726 (D.D.C. Sept. 23, 2019). In that case, a Senior Director of Operations for a political nonprofit organization in Washington DC alleged various claims against her employer, including under the EPA. The nonprofit moved to dismiss, arguing that plaintiff had utterly failed to plead facts sufficient to show that the skills, effort, and responsibilities required of her position and her alleged male comparators were substantially equal. Id. at *9. The district court held that plaintiff’s obligation at the motion to dismiss stage was low; she was not required to “show” anything, but only to allege with some plausibility facts sufficient to state a claim for relief. Id. 226 Id. at *9. The complaint pointed to the nonprofit’s own salary survey, which was performed for the alleged purpose of uncovering salary discrepancies. The court held that this was sufficient to suggest that the jobs surveyed were at least comparable: “courts should not require so much detail about similarity at the front end of a lawsuit as to make equal pay laws largely inapplicable to this class of employees.” Id. 227 Baker-Notter v. Freedom Forum, Inc., No. 18-cv-2499 (RC), 2022 WL 798382, at *7 (D.D.C. Mar. 15, 2022). 228 Id. at *8. 229 Id. at *9. 230 Id. (quoting Washington Cnty. v. Gunther, 452 U.S. 161, 166 (1981)). 231 Id. (quoting Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007)). 232 Pak v. GitHub, Inc., No. A159585, 2021 WL 3660375 (Cal. App. Aug. 18, 2021). 233 Id. at *4. 234 Id. at *4 (citing 29 U.S.C. § 206(d)). 235 Id. at *5.
RkJQdWJsaXNoZXIy OTkwMTQ4