©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 47 different test for determining proper comparators, i.e., the “substantially similar” standard as opposed to the “equal work” standard that appears in the federal EPA. Other California courts have also granted class certification to equal pay plaintiffs litigating under California’s revised equal pay statute, though not necessarily basing their opinions on any new features of that law. Recently, in Rasmussen v. The Walt Disney Co.,318 the Superior Court of California for Los Angeles County certified a class of women employed by any Disney-related company in California within a certain selection of job codes or job families listed in the class definition. Although the court mentioned the California EPA’s “substantially similar” standard, it did not base its certification decision on that standard, instead holding that, “[w]hether comparison [sic] drawn by Plaintiffs meets the substantially similar requirement will be for the ultimate fact finder to resolve.”319 Moreover, resolution of the case would involve weighing the parties’ competing expert analyses, which the court reasoned, “would be common evidence applicable to the class.”320 The employer argued that its affirmative defenses would not be amenable to resolution by common expert evidence, as it would have the opportunity with respect to each member of the class to show that any alleged wage disparity was attributable to bona fide, genderneutral factors. But the court held this was a problem of manageability, rather than issues of commonality and predominance with which class certification is concerned. This question could therefore be put off for another day: “While the Court will further address the manageability issue later, the predominance of commonality factor stands as no impediment to class certification of the EPA claims.”321 Notably, the court denied class certification under California’s state-law analogue to Title VII, holding that plaintiffs’ disparate treatment and disparate impact theories would require them to establish that a single policy or practice caused the alleged discrimination, which was not amenable to the same forms of common proof as their EPA claim. “[I]n order to demonstrate commonality for the FEHA claims, it is not enough for Plaintiffs to show they disproportionately are paid less than men like under the EPA claims. Instead, Plaintiffs must show that the reason behind that discrimination is the same for all class members, that is causation; in other words, to establish a prima facie case under the FEHA theory, Plaintiffs must not only establish that the neutral practice and the adverse impact is amenable to common proof, but also that the disparity was caused from the specified practice.”322 As with the Ellis case, plaintiffs attempted to do so by pointing to an alleged common policy of relying on prior salary (or salary expectations) to set starting pay, which plaintiffs argued worked to the detriment of already wage-disadvantaged or otherwise undercompensated women. But plaintiffs hoped to rely on statistics to make this case for them, which the court held they could not do: “by using a statistical analysis as primary evidence of disparate impact, Plaintiffs' argument essentially relies on bootstrapping; that is, the impact provides the common thread as to the reason for the discrimination.”323 Accordingly, class certification was denied with respect to those claims. Another recent development involving classwide claims under state pay statutes arose under Washington’s Equal Pay and Opportunities Act (“EPOA”). In Branson v. Washington Fine Wine & Spirits, LLC,324 the Washington Supreme Court addressed a certified question stemming from a putative class action of individuals who applied to positions posted on third‑party job sites, which did not include the salary or wage range required by the EPOA. As seen in many similar lawsuits filed since the statute’s 2023 amendments, the employer argued that the plaintiffs were not “bona fide” applicants truly seeking the positions and therefore could not pursue statutory damages. The Washington Supreme Court rejected that argument and held that a “job applicant” under the EPOA includes any person who applies to a solicitation intended to recruit applicants for a specific position, regardless of the person’s subjective intent in applying. The Court grounded its decision in the plain 318 Rasmussen v. The Walt Disney Co., No. 19STCV10974, 2024 WL 454593 (Cal. Super. Ct. Jan. 30, 2024). 319 Id. at *4. 320 Id. 321 Id. at *5. 322 Id. 323 Id. at *6. 324 Branson v. Washington Fine Wine & Spirits, LLC, 2025 WL 2536266 (Sup. Ct. of Washington, September 4, 2025).
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