©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 73 Burden shifting issues aside, establishing pretext is often a highly fact-specific and granular affair.563 Some courts have focused on an employer’s state of mind to decide the pretext analysis and evidence of direct discrimination is often enough to cast an employer’s stated reasons for a pay disparity in doubt. For example, in Egelkamp v. Archdiocese of Philadelphia,564 the court held that the employer’s proffered justifications could shift the burden of proof back to plaintiff, and Plaintiff pointed to comments made by her supervisor that were demeaning to the employer’s female General Counsel (“when you hire a female as your general counsel, there's a head problem, an ego problem”), among other things.565 The court held that, although this and other statements were ambiguous and subject to competing interpretations, it was nevertheless enough to send the issue of pretext to the jury. “A reasonable jury, weighing the credibility of the relevant witnesses, could find that [plaintiff] was paid less than [comparator] because of her gender even though there was substantial similarity between their responsibilities and relevant experience. When the record evidence is considered as a whole and reviewed in the light most favorable to [plaintiff], a factfinder could, at minimum, disbelieve the [employer’s] reasons for paying [plaintiff] less than [comparator].”566 Absent such evidence, however, courts are often loathe to second-guess an employer’s motivations. In Hornsby-Culpepper v. Ware,567 for example, the Eleventh Circuit held that the touchstone of the pretext inquiry centers on the employer’s beliefs, not the employee’s beliefs.568 “[A] plaintiff is not allowed to merely recast an employer’s proffered nondiscriminatory reasons or substitute her business judgment for that of the employer.”569 Similarly, in Black v. Barrett Business Services, Inc.,570 the court rejected 563 To name just a few examples, some courts have examined employer’s recruitment activities, see, e.g. Moore v. Baker, No. 2:18cv-00311-KD-B, 2020 WL 4934274, at *12 (S.D. Ala. July 20, 2020) (holding that college that had posted for plaintiff’s comparator’s position on several occasions with different salary ranges, having been unsuccessful in its first attempt with a lower salary, belied the notion of pretext: “considering these facts, expecting parity between a salary needed to retain an employee and a salary needed to recruit an employee with similar experience is not justified”) (emphasis in original), or corporate reorganizations, see, e.g., Anderson-Strange v. Nat’l R.R. Passenger Corp., No. 17-cv-1859-RGA, 2019 WL 2438842, at *4-5 (D. Del. June 11, 2019) (rejecting a claim that the reclassification of a manager’s position to a lower pay grade was merely pretext for discrimination where it was done pursuant to a restructuring plan, there was no evidence that plan had been inconsistently applied, and where plaintiffs’ proffered comparators managed more stations across a larger geographic territory and managed direct reports that were spread across those multiple stations—factors that were consistent with plaintiff’s employer’s rationale for reclassifying her position into a lower pay grade). Other courts have rejected such defenses for various reasons. See, e.g., Clark v. Vivant Solar, Inc., No. 2:17-cv144-JNP-JCB, 2020 WL 6873942, at *15 (D. Utah Nov. 23, 2020) (rejecting employer’s defense that it needed a regional HR manager who was physically located within plaintiff’s geographic territory to allow for regular visits and more face-to-face interactions, finding that, while that could explain the relocation itself, it did not explain why plaintiff was not offered the chance to relocate along with that position); Emanuel v. Ala. State Univ., No. 2:17-cv-658-ALB, 2019 WL 3246398, at *3 (M.D. Ala. July 18, 2019) (rejecting employer’s defense that plaintiff’s compensation was less than his comparator’s due to a “rank adjustment” that was given years earlier to all employees at a time when plaintiff was still an associate professor, but when his comparator was a full professor, because “evidence that the 2009-10 [] Salary Schedule replaced all previous salary considerations demonstrates that there is a genuine issue of material fact as to whether the non-discriminatory reasons offered by [employer] are pretextual”); Fortenberry v. Gemstone Foods, LLC, No. 5:17-cv-1608-AKK, 2018 WL 6095196, at *4 (N.D. Ala. Nov. 21, 2018) (“[A] reasonable jury could find that [employer’s] inconsistent application of its weekend pay policy and its shifting reasons for why it did not pay [plaintiff] for weekend work show that [employer’s] policy is pretext for a gender-based reason for the pay differential.”). 564 Egelkamp v. Archdiocese of Phila., No. 19-cv-3734, 2021 WL 1979422 (E.D. Pa. May 18, 2021). 565 Id. at *6 (“The [employer] contends [comparator] was paid more because he was more qualified, had more years of service with the [employer], and had significant experience with supervising employees and managing departments. . . . It also argues [comparator] had significantly greater responsibilities than [plaintiff]. . . . Taking the [employer’s] evidence as true, it points to sufficient facts to meet its relatively light burden.”) (internal citations and quotations omitted). 566 Id. at *7. 567 Hornsby-Culpepper v. Ware, 906 F.3d 1302 (11th Cir. 2018). In that case, a County Clerk complained about wage discrimination when she was hired at a lower salary than her predecessor in that position and her request for a higher salary was denied. Id. at 1307. The employer provided three non-discriminatory reasons for the lower salary, which involved budgetary constraints and the fact that plaintiff had previously been terminated from that position. Id. at 1312-13. Although plaintiff disputed the proffered reasons, the Eleventh Circuit found that she had “failed to point to any affirmative evidence establishing that his proffered reasons were false or a pretext for unlawful sex discrimination.” Id. at 1314. 568 Id. at 1313 (quoting Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)). 569 Id. See also Hall v. Ala. State Univ., No. 2:16-cv-593-GMB, 2019 WL 137593, at *11 (M.D. Ala. Jan. 8, 2019) (“Merely questioning the wisdom of a reason is not sufficient as long as the reason is one that might motivate a reasonable employer. . . . Hall's arguments question whether ASU should have relied on [comparator’s] experience and success but do not undermine ASU's reliance on those factors. . . . This court cannot conclude, therefore, that a sufficient question of fact as to pretext exists.”). 570 Black v. Barrett Bus. Servs., Inc., No. 1:18-cv-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). In that case, a branch manager of an employee staffing and recruiting company complained she was paid less than equally qualified branch managers at her branch and a nearby branch. The employer argued that plaintiff’s comparators were paid more because they had experience
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