©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 37 classes serving in high-level executive positions.”247 The court then analyzed plaintiff’s claim of gender discrimination under Title VII, noting that “[i]t is true that the burden of showing the similarity of work performed by a female plaintiff and a male comparator is ‘more relaxed’ under Title VII than under the EPA.”248 However, under Title VII, plaintiff still had to show that she and her proffered comparators were similarly situated in all material respects.249 The court held that she was not “similarly situated” under Title VII because she did not share the same employment history, her comparators had worked for the employer decades longer than plaintiff, and “a difference in employment history that alone prevents them from being ‘similarly situated’ to Plaintiff.”250 On appeal, the Eleventh Circuit affirmed the decision of the district court. While confirming that “Title VII and the EPA have different burdens of proof,” with Title VII’s “relaxed standard of similarity between male and female-occupied jobs,” the court noted that a plaintiff nonetheless has the burden of proving an intent to discriminate on the basis of sex.251 The court also compared the burden imposed on plaintiffs at the pretext stage, when they seek to overcome an employer’s proffered explanation for a wage disparity. Under the EPA, a plaintiff “can show pretext by demonstrating weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the proffered reason for the employment action such that a reasonable factfinder could find them unworthy of credence.”252 Under Title VII, on the other hand, a plaintiff may “survive summary judgment if she presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’”253 The Calicchio court affirmed the denial of claims under both the EPA and Title VII.254 However, in the Title VII context, that failure went to plaintiff’s prima facie case, rather than the issue of pretext. “[Plaintiff] failed to establish a prima facie case by showing a convincing mosaic of intentional discrimination. The evidence relied upon is subjective and would not allow a jury to infer intentional discrimination.”255 B. Significant Class And Collective Action Decisions Unlike the EEOC, which can bring lawsuits on behalf of a class of aggrieved individuals without meeting the requirements for class certification, private litigants must establish that their equal pay lawsuits can be decided on a collective or class-wide basis. These standards differ significantly under the EPA versus Title VII. The procedures for establishing a collective action under the federal EPA are governed by the opt-in procedures of the Fair Labor Standards Act (“FLSA”). Those procedures can confer a significant litigation advantage to plaintiffs because that standard is much more lenient than the standards applied to 247 Id. at 1238. 248 Id. at 1245 (quoting Rollins v. Ala. Comm. Coll. Sys., 814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011)). 249 See also Nelson v. County of Cook, 2025 WL 2437132 (7th Cir. 2025) (finding that the plaintiff was not similarly situated to comparators when applying the McDonnell Douglas framework due to differences in duties, educational background, and that two of the comparators were plaintiff’s supervisors). Although this circuit also has a precedential “totality of the evidence” standard to assess employment discrimination under Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 766 (7th Cir. 2016) the Nelson court declined to overturn a decision that instead applied the McDonnell Douglas framework to analyze similarly situated employees and establish inference of discrimination. 250 Calicchio, 584 F. Supp. 3d 1215, at 1245 (quoting Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 (11th Cir. 2019)). 251 Calicchio v. Oasis Outsourcing Group Holdings, L.P., No. 21-12854, 2022 WL 2761720, at *3 (11th Cir. July 15, 2022) (quoting Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992)). 252 Id. The court affirmed the district court’s judgment on that claim because, among other things, the plaintiff failed to identify affirmative evidence to establish pretext, and instead relied on subjective testimony. Id. 253 Id. (quoting Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019)). 254 Courts have declined to apply the McDonnell Douglas framework under 42 U.S.C. §1981 on a summary judgment motion in Chames v. Wade, 2025 WL 2263447 (N.D. Ala. 2025) (finding that although plaintiff was offered a $5,000 raise after complaining about a $17,000 pay disparity, offering such a raise or maintaining status quo is not considered a materially adverse action under Title VII or §1981 because no disadvantageous change occurred and because the plaintiff did not present evidence her employer had the funds to increase her salary by $17,000. Furthermore, the plaintiff had a fundamentally different position requiring less training and certification and was employed within the civil service system, while her comparators were not). The court relied on a recent Title VII Supreme Court case, Ames v. Ohio Dep’t of Youth Servs., 145 S. Ct. 1540, 1555 (2025), criticizing use of the McDonnell Douglas framework in judging a Rule 56 motion. 255 Calicchio, 2022 WL 2761720, at *4.
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