©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 69 the Budget Committee and the Dean determined faculty members' pay raises on the basis of a merit system, the University has raised a valid affirmative defense under the Equal Pay Act.”523 Proper documentation and consistent application of such systems are critical to establishing these defenses. Lack of either can prove fatal to an employer’s position. For example, in Toole v. Lakeshore Ear, Nose, and Throat Center, P.C.,524 an African American head and neck surgeon alleged she was paid less than her white male counterparts due to her gender and race. The employer argued the alleged pay disparities were the result of its merit system and/or a system that measures earnings by quantity or quality of production. The court denied the employer’s motion for summary judgment because of conflicting evidence about the compensation system: while “the Executive Committee used an objective mathematical formula based on Payments from insurance, Medicare/Medicaid and patients to determine compensation,” the “employer’s President testified that pay was not based on quality or merit because they were unaware of any appropriate metric to assess merit.”525 Thus, “[employer’s] own admissions counter this affirmative defense.”526 Similarly, in Brunarski v. Miami University,527 the court held that a merit system could not justify a wage disparity because it used vague and inconsistently applied criteria.528 The defendant university did not show that its factors were communicated to professors prior to their use, and it deviated from its standard factors for other raises. The court thus held that the university “must show that there was an actual legitimate business purpose of [employer] for its focus on these factors to the exclusion of other factors typically considered when awarding a merit raise under the standard factors.”529 In contrast, the employer in McCarty v. Purdue University530 successfully justified a pay disparity thanks to clear communication and consistent documentation. The university said plaintiff’s comparator started at a higher salary because he had previously worked for the employer, and that initial pay difference grew over time due to the employer’s merit ranking system.531 The court was persuaded by the fact that plaintiff’s poor performance was consistently documented and communicated to her, and the comparator’s salary “was impacted by his successful experience during the nine years before [plaintiff] began employment. The Court finds this to be a reasonable differential that is not based on sex and does not believe a reasonable jury could conclude otherwise.”532 523 Id. at *16. In an earlier decision, the court also excluded plaintiff’s expert witness, a social science researcher, who sought to provide “social framework” testimony regarding the operation of stereotypes and bias that can lead to workplace discrimination against women. Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 4304815, at *2 (W.D. Tex. Sept. 21, 2021). The court held, among other things, that there was simply too great an analytical gap between the general research the expert relied upon and the specific conclusions he was offering about the case. Id. at *6. 524 Toole v. Lakeshore Ear, Nose, and Throat Ctr., P.C., No. 21-cv-11850, 2023 WL 3794507 (E.D. Mich. June 2, 2023). 525 Id. at *12. 526 Id. 527 Brunarski v. Miami Univ., No. 1:16-cv-311, 2018 WL 618458 (S.D. Ohio Jan. 26, 2018). In that case, two female university professors alleged they were paid less than comparable men. Among other things, the university attempted to justify the pay disparity as the result of a merit-based system. Id. at *10. The employer argued that plaintiffs’ comparators received larger merit raises because of their involvement in study abroad programs and because of exceptional performance. Id. 528 The court held that the university had failed to establish this affirmative defense because, among other things, the standards for awarding so-called “super-merit” raises were vague and contradictory. Id. at *11. There was no evidence to show the factors cited by the university had been used previously to award super-merit raises or any other type of raise. Id. Moreover, the court found the university’s application of the factors ostensibly used to justify the super-merit raises were not “commensurate with satisfaction” of those factors. Id. 529 Id. at *12. Although the university had articulated a legitimate reason for those factors, “the same could be said for almost any individual factor it chose to now focus on that somehow relates to teaching, research, or service.” Id. 530 McCarty v. Purdue Univ., No. 4:19-cv-43 JD, 2021 WL 3912564 (N.D. Ind. Sept. 1, 2021). 531 Id. at *3. If an employee ranked in the bottom 10%, they would not be given a merit increase that year. Plaintiff ranked in the bottom 10% each year but one, whereas her comparator never ranked in the bottom 10% and in fact was ranked in the top 25% multiple years. He therefore received a merit increase each year. Moreover, the facts showed that in the one year when plaintiff did not rank in the bottom 10%, she did receive a merit increase (though it was less, in percentage terms, than what her comparator received, due to their different performance rankings that year). Id. 532 Id. at *5. See also Summy-Long v. Pa. State Univ., 715 F. App’x 179, 183 (3d Cir.). In that case, the Third Circuit affirmed dismissal of a female physician’s wage claim because, among other things, numerous items in the record “reflected a lack of academic performance in comparison to her colleagues.” Id. Among other things, she had been urged to increase publications and
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