16 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP Similarly, in Wentzel v. Williams Scotsman Inc.,116 although the court held that the plaintiff had established that the work of two Account Executives was “substantially equal,” summary judgment was granted to the employer because it turned out that plaintiff actually earned more money than her male comparator.117 The plaintiff argued that she had to work significantly harder than her male comparator in a manner that was disproportionate to her additional compensation. The court held that: “[e]ven assuming that [plaintiff] had to work harder than [comparator] for her pay, she was still paid more. The EPA’s very text precludes a claim under these circumstances.”118 2. Showing That Work Is “Equal” Or “Substantially Similar” To establish a prima facie case under the federal EPA, an employee must establish that they were paid less than an employee of the opposite sex—often referred to as a “comparator”—for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”119 This “equal work” requirement can present some significant hurdles to putative plaintiffs, especially those hoping to certify sprawling collective or class actions. Some states, however, have adopted different standards, such as California’s standard: “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”120 Other states apply a “comparable character,” standard, or other standards that are arguably more or less lenient than the “equal work” or “substantially similar work” standards.121 The exact meaning of these standards is far from a settled matter, even with respect to the federal EPA, which has been in place since 1963. Actual Job Duties or Content. The requirement that a plaintiff show that they performed the same or similar work as their chosen comparators is often the most significant obstacle to a plaintiff’s prima facie case. Some industries are naturally more amenable to this kind of defense than others. For example, several courts have noted how difficult it can be to compare professionals in the academic and medical fields. In Freyd v. University of Oregon,122 for example, the district court acknowledged the unique complexities that attach to the notion of “equal pay for equal work” in the university setting.123 The court noted that the nature of the academic setting allowed different professors within the same discipline to choose to follow different paths of knowledge and to pursue endeavors that create different and unique value to the institution.124 Moreover, a university must offer competitive salaries in order to attract top 116 Wentzel v. Williams Scotsman Inc., No. 18-cv-02101-PHX-SMB, 2020 WL 1158547 (D. Ariz. Mar. 10, 2020). The plaintiff was the only female Account Executive employed at a modular office space provider. Her comparator was the only other Account Executive working at the same office, who was male. 117 Id. at *3-4. 118 Id. at *4 (emphasis in original). 119 29 U.S.C. § 206(d)(1). Federal employees arguably must meet an even higher threshold for proving a prima facie case because controlling Federal Circuit Court authority imposes an extra requirement—that plaintiffs establish that the alleged pay differential was “based on sex.” See, e.g., Gordon v. U.S., 903 F.3d 1248, 1254 (Fed. Cir. 2018), vacated as moot, 754 Fed. App’x (Fed. Cir. 2019) (affirming the dismissal of two Veterans Affairs physicians’ federal EPA claims because they had not established that the alleged pay differential was “based on sex”; relying on an earlier Federal Circuit case, the court held that this showing was not sufficient to establish a prima facie case because plaintiffs must also show that the “pay differential between the similarly situated employees is ‘historically or presently based on sex,’” but the plaintiffs had not done so and could not “satisfy this requirement merely through an inference drawn from the statutory elements of the prima facie case under the EPA”) (quoting Yant v. U.S., 588 F.3d 1369, 1372 (Fed. Cir. 2019)). 120 See Cal. Lab. Code § 1197.5(a). 121 See, e.g., Md. Code Ann. Lab. & Empl. §§ 3-304(b)(1)(i). 122 Freyd v. Univ. of Or., 384 F. Supp. 3d 1284 (D. Or. May 2, 2019). In that case, a university professor of psychology alleged that she was paid less than other professors at the same university for performing the same work. Plaintiff had become concerned that the salary inequities in her department were related to gender and, in particular, that her salary was below that of male professors in the same department with less seniority. Id. at 1289. However, the university decided not to offer her a raise after concluding that she was compensated at a higher rate than the majority of professors in the College of Arts and Sciences, and that any discrepancy with respect to her salary versus her male colleagues was attributable to retention raises and significant differences in job duties. Id. 123 Id. at 1288. 124 Id.
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