70 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP As with the “factor other than sex” defense, plaintiffs have sometimes challenged these defenses on the grounds that they are inherently discriminatory. For example, in Spellers v. United States,533 an employer argued that differences in pay were due to the government’s highly structured and regulated merit system, and therefore could not be due to gender.534 Plaintiff contested this, arguing the merit system and review process were corrupted by discriminatory inputs about her actual duties and performance.535 The court found those arguments were based on speculation and noted plaintiff’s acknowledgment that the employer’s system was “facially gender-neutral when functioning as intended and with good data, . . . [thus] she has conceded the viability of defendant's affirmative defense.”536 Seniority Systems. Although less common as a defense, seniority systems are treated similarly to merit systems. In Duke v. City College of San Francisco,537 an administrator at a community college alleged he was paid less than a female counterpart who performed the same work. However, the court held that his chosen comparator had been an employee with the college for over three years before being hired into the same position as plaintiff. The court concluded that “Defendant has submitted undisputed evidence showing that [comparator] had already been a[n] . . . employee for three years before she was hired to perform the same role as plaintiff . . .. Thus, within the [employer] system, [comparator] had seniority, and it was permissible for her to receive a higher salary than plaintiff.”538 As with a merit system, consistency and proper documentation are key. For example, in Donovan v. Nappi Distributors,539 a female Wine Purchasing Manager for a beverage distributor alleged she was paid less than her male predecessor in the same position. The employer argued the predecessor’s higher pay was justified by his significantly greater experience and seniority than plaintiff at the company.540 The court held the employer had failed to establish its affirmative defense by the applicable EPA standard, i.e., by a preponderance of the evidence. While it was undisputed that plaintiff’s predecessor had significantly more experience in the industry, the employer’s failure to document the impact of its “seniority system” doomed its defense. “[W]hile [employer] claims seniority influences the different compensation, the record is devoid of any documentation supporting a ‘seniority system’ and its corresponding salary calculation.”541 Accordingly, the court held that a reasonable jury could find seniority was merely a pretext for its compensation decisions.542 to obtain external funding to support her research. She also “failed to apply to renew her National Institute of Health grant even after being reminded repeatedly for three years by her superior.” Id. The court held that this evidence established that “[t]he difference in [her] salary compared to her male coworkers resulted from, among other things, her lack of publications and failure to obtain external funding.” Id. 533 Spellers v. U.S., 157 Fed. Cl. 171 (Ct. Fed. Cl. 2021). In that case, a female computer scientist sued the Department of the Navy, alleging she was paid less than male co-workers for the same work. The plaintiff had been paid at the GS-11 equivalent pay band, while her comparators had been paid at a GS-13 level. Id. at 173. When plaintiff and her peers were transitioned to a new personnel management system, her pay was flagged by the system as too low. Id. She was given a large raise to help her catch up with her peers. Thereafter, she received modest pay increases, but still remained at the GS-12 level for several years. Id. at 174. 534 The employer pointed to its sophisticated and gender-neutral merit-based system, called the NAVAIR Science and Technology Reinvention (“STRL”) Personnel Management Demonstration Project. 535 Id. at 177. 536 Id. (internal citations omitted). 537 Duke v. City Coll. of S.F., No. 19-cv-6327-PJH, 2021 WL 1966599 (N.D. Cal. May 17, 2021). 538 Id. at *8. 539 Donovan v. Nappi Distribs., No. 2:21-cv-70-JAW, 2023 WL 7702137 (D. Me. Nov. 15, 2023). 540 Id. at *95. 541 Id. at *96. 542 Id. The same court came to a similar conclusion in another case brought against the same employer. In Tourangeau v. Nappi Distributors, 648 F. Supp. 3d 133 (D. Me. 2022), a female wine sales representative alleged she was underpaid compared to her male peers because she was paid at a 2% commission rate while they were paid at a 3% rate. At the time she was hired, her employer was in the process of reducing the pay scale of some of its sales representatives to better align with industry norms and to lower payroll costs. Id. at 149-50. The new commission rates applied to new hires; more senior sales representatives were “grandfathered in,” so their rate structure was not impacted. The plaintiff was both the first female wine sales representative and the first wine sales representative to be hired at the 2% rate. Id. at 208. The court held that a jury could reasonably conclude that the employer’s decision to offer a lower rate to plaintiff was due to discrimination, particularly because it had not introduced evidence of the more senior male representatives’ professional experience. Without such evidence, the Court was “unable to determine whether seniority justified this initial pay discrepancy.” Id.
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