72 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP was paid less than a similarly situated male professor. The employer argued it had hired plaintiff’s comparator at a higher salary because he replaced a tenured Full Professor whereas plaintiff replaced an Assistant Professor, so there was more money in the budget to pay a higher salary when plaintiff’s comparator was hired.553 Plaintiff claimed this explanation was a pretext for discrimination. The court noted the differences between proving pretext under the McDonnell Douglas framework versus the framework of the EPA and held that, under the EPA, defendant always keeps the burden of production and persuasion after plaintiff has established a prima facie case.554 Accordingly, the burden was on the employer to prove that the pay disparity could be explained by factors other than sex. The court held it had not done so, noting among other things that the employer had chosen not to fix the known pay disparity when it was discovered. “There are genuine factual disputes about whether [employer] violated the EPA, and a jury could even decide that [employer] willfully violated the Act in light of the fact that the university chose not to fix a wage gap over the course of two academic years.”555 Patel v. Tungsten Network, Inc.556 addressed this issue under California’s EPA statute. In that case, a client relationship manager brought suit for pay discrimination under the California EPA and the California Fair Employment and Housing Act (“FEHA”).557 The court granted the employer’s motion for summary judgment on the FEHA claim because it met the requirements of the McDonnell Douglas burden-shifting framework applied to such claims.558 But, the court came to a different conclusion regarding plaintiff’s claim under the California EPA, because of the heightened standard for a “factor other than sex” defense under that statute.559 It held that a defendant in a California EPA claim must do more than merely “articulate” a legitimate nondiscriminatory reason for a pay disparity.560 An employer must instead “submit evidence from which a reasonable factfinder could conclude not simply that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.”561 Applying that framework, the plaintiff did not need to establish pretext to avoid summary judgment because “summary adjudication on the EPA claim is proper only if Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue.”562 553 Id. 554 The court did acknowledge that several older cases imply that the burden should shift back to the plaintiff to prove pretext after the defendant met its burden to establish an affirmative defense. But the court held this was wrong, relying on the Fifth Circuit’s holding in Lindsley v. TRT Holdings, Inc. to conclude that “the court will always consider pretext if the analysis gets that far, but the burden never shifts back to the plaintiff in an EPA claim.” Id. at 654 (citing Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 466 (5th Cir. 2021)). 555 Id. at 655. Other courts in the same circuit have relied on the same Fifth Circuit case to draw the opposite conclusion. See Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“The burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs claims under the EPA.”) (citing Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 466 (5th Cir. 2021)). 556 Patel v. Tungsten Network, Inc., No. 2:20-cv-7603-SB-JEM, 2021 WL 4776348 (C.D. Cal. Sept. 15, 2021). 557 Id. at *1. 558 The employer had pointed to differences in experience, qualifications, and education to justify the wage disparity, which the court held was a bona fide, non-discriminatory reason. Id. at *4. Under the burden shifting regime applicable to FEHA claims, the McDonnell Douglas framework, the burden then shifted back to the plaintiff to establish pretext. The court found that plaintiff failed to do so according to the rather stringent standard applied under McDonnell Douglas: “Plaintiff's assertions fail to raise the level of ‘substantial, responsive evidence’ necessary to show Defendant's bona fide, nondiscriminatory reason for the challenged wage disparity was pretextual.” Id. at *5. 559 The court first held that the California EPA should be interpreted in line with the federal EPA with respect to which burden-shifting framework to apply. Prior California precedent had held that the McDonnell Douglas framework should apply to California EPA claims. Id. (citing Green v. Par Pools, Inc., 111 Cal. App. 4th 620, 626 (2003)). However, the court relied on the more recent decision in Rizo to find that: “this burden-shifting test is inapplicable to the federal EPA because ‘EPA claims do not require proof of discriminatory intent,’” and, “[l]ike its federal counterpart, the California EPA also does not require proof of discriminatory intent.” Id. at *6. 560 Id. at *7 (quoting Rizo, 950 F.3d at 1222) (emphasis in original). 561 Id.. 562 Id. (quoting Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000)). Because the employer could not come up with contemporaneous evidence that it had in fact set plaintiff’s and her comparators’ salaries according to their different qualifications, the court held that a reasonable juror could conclude that those qualifications do not explain the wage disparity. Id.
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