50 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP populations. Only Probation Officers who achieve one of the three highest scores on an exam are eligible for promotion. “If Plaintiffs had alleged that female Probation Officers of color who were not promoted were eligible for such promotions, these statistics might well provide the foundation for a viable claim. But without any such allegations, the Court cannot rely on these statistics alone to infer either a pattern or practice of discrimination or that any disparate impact on women of color was caused by a particular policy or practice.”345 Turning from promotions to pay, the court held that plaintiffs’ pay discrimination claims were timely because they had received paychecks within the limitations period, and each payment was a discrete discriminatory act.346 On the merits, the court held that plaintiffs had failed to allege any kind of discriminatory pay claim because they failed to allege facts sufficient to show they were paid less than, or that they performed jobs equal to, their male comparators. “Merely stating that the Administrative Staff Analyst job requires less ‘skill, knowledge and ability’ articulates just part of this requirement: it does not provide a sufficient description of the responsibilities, requirements, or working conditions of Administrative Staff Analy[sts] that would allow the Court to plausibly infer that they perform equal work to Probation Officers.”347 Even with respect to Probation Officers who share the same title, Plaintiffs failed to allege anything more than conclusory assertions, which the court was not bound to accept as true.348 Nor could plaintiffs’ statistics salvage those claims, because those statistics did not break salary disparities down by title. “Plaintiffs’ expert economist concluded that the pay disparities he identified were largely attributable to race and gender disparities in job title—indeed, that job title disparity by race and gender results in a salary disparity by race and gender.”349 C. Disproving Discrimination: Employers’ Affirmative Defenses Under the burden-shifting framework applicable to the federal EPA, if a plaintiff successfully establishes a prima facie case, the burden shifts to the employer to establish one of the four statutory affirmative defenses, i.e., that the pay disparity is justified by: (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any other factor other than sex.350 1. Proving A Factor Other Than Sex Under the federal EPA, the most common factor relied upon to justify a pay disparity is the catchall “factor other than sex” defense. Employers often point to factors such as levels of education, training, or other qualifications, productive output or performance, and other individually specific differences as factors that justify pay disparities. The defense is intentionally broad, and so the factors that employers raise under the framework of this defense tend to be quite broad and varied as well. a. Compensation Systems and Hierarchies Employers often attempt to justify pay disparities by pointing to their compensation systems, arguing that pay disparities are the result of where employees stand within the compensation hierarchy. For example, in Borovicka v. United States,351 a female attorney in the Federal Deposit Insurance Corporation’s legal division alleged she was discriminated against when her employer set her base salary lower than that of a 345 Id. at *7 (emphasis in original). 346 Id. 347 Id. at *8. 348 Id. at *9. 349 Id. at *10. 350 29 U.S.C. § 206(d)(1). 351 Borovicka v. United States, 168 Fed. Cl. 534 (Fed. Cl. 2023).
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