©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 51 male colleague.352 The court concluded that the employer had adequately justified the salary differential because the initial and final salary offers made to plaintiff and her alleged comparator “were consistent with the FDIC's Pay Administration Program and implementing Guide to Pay Setting, as well as the agency's Standard Operating Procedures (SOP) for Pay Setting Procedures for Corporate Graded (CG) Positions (SOP Pay Setting Procedures).”353 Those guidelines generally recommended setting new employee’s salaries at the minimum end of a designated range, but allowed for some discretionary upward adjustments to account for relevant experience. The evidence established that these procedures were followed. Both plaintiff and her comparator were initially offered salaries at the low end of the advertised pay range and then given an opportunity to provide documents justifying a higher starting salary.354 The evidence showed that plaintiff’s pay was set due to a list of well-documented genderneutral factors, including guidance from Human Resources personnel, plaintiff’s previous pay rate, and her relative lack of government experience and experience in federal sector labor and employment law.355 The court concluded that the employer “met its burden of amply demonstrating [plaintiff’s] starting base salary was decisioned on properly asserted and contemporaneously documented gender-neutral considerations.”356 Similarly, in Niekamp v. State of Missouri,357 the court found in favor of the employer because plaintiff’s pay was set by the state’s Office of Administration’s Uniform Classification and Pay System. That system established salaries for each position and set initial pay rates based on qualifications and permanent position-related factors, such as working conditions or physical location of work, and/or recruitment or staffing needs.358 Although plaintiff was paid less than three other male colleagues, those employees were at a different pay grade according to the salary system. “Defendants have adequately proved that [plaintiff] was at a lower pay grade than those three male colleagues because of her prior work experience and as the result of working in different divisions.”359 And in Akerson v. Pritzker,360 the Bureau of the Census posted a recruiting bulletin that sought candidates to be Partnership Specialists at four salary grade levels. The bulletin specified that candidates must submit separate applications for each grade level.361 The plaintiff in that case applied only for a position at the second-lowest pay grade. Her chosen comparator applied for the same position at a higher pay grade. He was paid more even though his position involved substantially the same, if not identical, responsibilities.362 The court held that “Defendant's employment practice of hiring and compensating individuals based on the job grade he or she applies for constitutes a legitimate factor independent of sex.”363 352 Id.at 543. Although the employer argued that plaintiff had failed to establish a prima facie case because she could not identify adequate comparators who were paid more than her, the court ignored those arguments because the employer had ignored them in its opening brief and had moved for summary judgment only with respect to its affirmative defenses. Accordingly, the only issue in dispute was whether the employer had met its burden to establish that the alleged pay disparity was due to a factor other than sex. 353 Id. at 544. 354 Id. 355 Id. at 545. 356 Id. at 546. 357 Niekamp v. State of Mo., No. 20-cv-04075-WJE, 2022 WL 4543207 (W.D. Mo. Sept. 28, 2022). In that case, a female investigator in the state’s prosecution unit alleged an EPA violation due to the fact that she was paid less than her male predecessor in the same role. Although her claim was based on Title VII, the court applied the principles of the EPA to resolve her claim: “A gender-based discrimination claim under Title VII, 42 U.S.C. §§ 2000e-2(a)(1) . . . is governed by the standards of the Equal Pay Act, 29 U.S.C. § 206(d).” Id. at *4. 358 Id. Plaintiff argued that she should have been paid more than her predecessor because she had more transferable experience from working in the state’s Attorney General’s Office. But the court found that her experience did not make her eligible for withingrade salary advancement per the operation of the salary system and held that the court would not sit as a “super-personnel department that reexamines an entity’s business decisions.” Id (quoting Taylor v. White, 321 F.3d 710, 719 (8th Cir. 2003)). 359 Id. 360 Akerson v. Pritzker, No. 12-cv-10240-PBS, 2021 WL 2295522 (D. Mass. June 4, 2021). 361 Id. at *1. 362 Id. at *9. 363 Id. at *10. The plaintiff had not asserted that she was denied the opportunity to apply for her position at a higher grade level, and she plainly had not. Moreover, the employer was able to show that there was at least one female hired into the same position at the same pay grade as plaintiff’s chosen comparator. Id. at *9.
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