74 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP plaintiff’s attempt to show that an employer’s reasons were a pretext for discrimination because she was not able to present evidence to show discriminatory animus on the part of her supervisors or fellow branch managers.571 Moreover, the employer was able to show that it had hired other female branch managers at salaries that were higher than plaintiff’s salary and higher than other male branch managers, and that there were other male branch managers who, like plaintiff, never received a salary raise, and that it had increased the salaries of other female branch managers over time.572 D.Other Important Substantive Decisions Impacting Equal Pay Litigation 1. Retaliation Claims Because the federal EPA is incorporated into the FLSA, it includes the anti-retaliation provisions of that statute. Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has” engaged in protected conduct, such as filing a complaint of wage discrimination.573 Establishing a causal link between a plaintiff’s protected activity and the alleged adverse employment action is often the most difficult burden for a plaintiff to overcome to establish retaliation. Issues of causation can be quite complex. For example, in Loos v. County of Perry, Illinois,574 a county public defender alleged, among other things, that her employer constructively discharged her by significantly changing her position and refusing to pay her earned benefits.575 At issue was the employer’s decision to change plaintiff’s position from a full-time position to multiple part-time positions. The employer—a county, run by a board—argued that it could not be held liable because the decision had been made at the state level by a judge. However, the court found the employer had failed to “cite to any evidence that the Board had no authority to decide whether to change the public defender position from full-time to part-time . . . . [a]nd, the evidence, state law, and logic suggest the Board did have authority to decide the nature of the public defender position.”576 The court noted that the employer county controlled its own purse strings and had authority to decide whether the office of the public defender would even exist. Nevertheless, the court held in the employer’s favor, finding plaintiff failed to demonstrate a sufficient causal link between her protected activity and the alleged retaliatory conduct. Among other things, the plaintiff argued the county’s stated reasons for changing her position were pretextual. Though the county argued that switching to part-time public defenders would save money, plaintiff claimed it would in fact cost the county money because it could not obtain reimbursement from the state for all of the part-time positions.577 But, the state had allowed the county to seek reimbursement for all part-time public she did not have. Id. at *6. In particular, the employer pointed to the fact that her comparators had significant experience growing and managing their own businesses. The Company’s strategy was to hire branch managers who could successfully build their branch into multi-million-dollar revenue centers. Id. at *7. 571 Id. at *8. 572 Id. at *9. 573 29 U.S.C. § 215(a)(3). Under the FLSA, an employee has engaged in protected conduct if he or she has “filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or has served or is about to serve on an industry committee.” Id. What counts as “filing a complaint“ is often a contentious issue. For example, in Burke v. State of New Mexico, 696 F. App’x 325 (10th Cir. 2017), the Tenth Circuit affirmed the district court’s dismissal of, among other things, a retaliation claim brought pursuant to New Mexico’s Fair Pay for Women Act because the plaintiff failed to allege that she had engaged in any protected conduct. Analyzing the statute under the rubric of the federal EPA, the Tenth Circuit held that although plaintiff had alleged that she had questioned her superiors about an alleged pay disparity, she had failed to allege that this “questioning” rose to the level of actual objection or opposition to the alleged pay disparity. Id. at *2. 574 Loos v. Cnty. of Perry, Ill., No. 3:20-cv-1107-MAB, 2023 WL 6382364 (S.D. Ill. Sept. 30, 2023). 575 Id. at *15. 576 Id. at *16. 577 Id. at *17.
RkJQdWJsaXNoZXIy OTkwMTQ4