©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 77 Some recent decisions have also addressed what counts as “protected activity” under the EPA’s antiretaliation provisions. In Barnard v. Power Valley Electric Cooperative,598 a manager alleged she was placed on administrative leave and later fired after she brought complaints about discrimination to the company’s Audit Committee, along with supporting documents and a seven page letter that described alleged sexual harassment and discriminatory pay practices.599 The court noted that protected activity must be adverse to an employer’s interests, i.e., an employee would not engage in protected activity if he or she investigates discrimination on the employer’s behalf with the intention of limiting the employer’s liability for such discrimination. But that was not the case here. In this case, the court held that “it was sufficiently clear that [plaintiff’s] request was adversarial. She asked for a pay raise for herself . . .. Before she was fired, she hired an attorney and told [employer’s] counsel, on multiple occasions, that she was considering a lawsuit.”600 As another example, in Craven v. City of New York,601 the court dismissed an EPA retaliation claim because the plaintiff failed to establish she had complained about unequal pay with sufficient particularity to put the employer on notice that a grievance had been lodged against it.602 “To premise a retaliation claim on an oral complaint to her employer, a plaintiff must allege that her complaint was ‘made with a ‘degree of formality’ and that its content and context provide ‘fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of [the employer's] business concerns.’”603 Although the court acknowledged plaintiff’s claim that she had complained about her pay and level of responsibility as compared to other employees, it concluded “there is no indication that she was actually complaining of conduct that plausibly rises to an Equal Pay Act violation,” particularly in light of the fact that she did not mention her alleged comparator in the statements to her employer.604 Other recent decisions have considered what counts as an “adverse action.” For example, in Noonan v. Consolidated Shoe Co.,605 a Content Marketing Coordinator for a shoe distributor alleged she was discriminated against with respect to pay and then retaliated against when she complained about it. She alleged her employer retaliated against her by, among other things, threatening to fire her when she complained of discrimination.606 The court held that the employer’s one-off, inaccurate statement to plaintiff that her knowing a co-worker's pay was a fireable offense, even if it could be characterized as a “threat,” was not sufficiently adverse to be actionable. Explaining that retaliatory conduct must be “’materially adverse,’ which means the plaintiff must show ‘significant’ harm that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination,’”607 the court held that “no reasonable juror would conclude that the threat was a significant harm that would have dissuaded a reasonable worker from making a charge of discrimination.”608 Courts in the D.C. Circuit have likewise emphasized careful scrutiny of what qualifies as an “adverse action.” In Williams v. Family Health International,609 the plaintiff alleged he was subjected to discrimination, retaliation, and a hostile work environment after challenging leadership’s DEI practices and later being removed from her temporary Acting Managing Director role. The court held that dismissal 598 Barnard v. Power Valley Elec. Coop., No. 3:18-cv-537, 2021 WL 1383228 (E.D. Tenn. Apr. 12, 2021). 599 Id. at *2-3. 600 Id. (internal citations omitted). The employer also argued that her complaint was too vague. But the court noted that even informal complaints can be protected activity so long as it can reasonably be understood by the employer to constitute a complaint of sex discrimination. Id. at *6. The court held that plaintiff’s complaint easily met that threshold, noting that “[plaintiff’s] seven-page letter detailed how her employees—who were almost all women—had not received pay raises when compared to other employees—who were almost all men—in the company,” which came with a complaint about a long history of sexual harassment as well. Id. at *7. 601 Craven v. City of N.Y., No. 19-cv-1486 (JMF), 2020 WL 2765694 (S.D.N.Y. May 28, 2020). 602 Id. at *7 (quoting Lenzi v. Systemax, Inc., No. 14-cv-7509 (SJF), 2015 WL 6507842, at *5 (E.D.N.Y. Oct. 26, 2015)). 603 Id. 604 Id. (quoting Kent-Friedman v. N.Y. State Ins. Fund, No. 18-cv-4422 (VM), 2018 WL 6547053, at *2 (S.D.N.Y. Nov. 16, 2018)). 605 Noonan v. Consol. Shoe Co., 84 F.4th 566 (4th Cir. 2023). 606 Id. at 571-72. 607 Id. at 575 (quoting Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 656 (4th Cir. 2023)). 608 Id. 609 Williams v. Family Health Int’l, No. 24-cv-2654 (BAH), 2025 WL 2506580, at *1-2 (D.D.C. Sept. 2, 2025)
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