32 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP The most significant recent development in equal pay class action litigation was the class certification decision issued in a massive equal pay case, Ellis v. Google, Inc.246 In that case, four named plaintiffs brought a class action alleging that their employer had systematically underpaid over ten thousand women employees as compared to men performing the same work. Plaintiffs’ amended complaint narrowed their proposed class to female employees who worked in any of 30 separate positions, which plaintiffs categorized into six job “families.”247 They also alleged that the employer maintained a companywide policy for setting starting salary that included consideration of an employee’s prior salary. According to plaintiffs, that policy perpetuates a historical pay disparity that exists between men and women and caused female employees to receive a lower starting salary than men in the same job position and level.248 The Superior Court of California, San Francisco County, granted class certification. The employer argued that even if employees shared the same job code, they were not necessarily performing substantially similar work because they work across many different domains and product areas. The court disagreed, basing its decision on the standard under the California EPA and the standard applied at the class certification stage. The Court held that the “substantially similar” standard does not require that jobs be identical or require exactly the same duties.249 Moreover, at the class certification stage, it was enough that Plaintiffs and Google had proffered common evidence to argue their positions—directly contrary to each other, to be sure—but nevertheless “common” in the sense that both sides argued their positions largely through the use of expert opinion analysis of the employer’s pay data.250The court held that “[t]he [California] EPA does not require that each and every plaintiff identify one specific individual as comparator.”251 Citing a defendant’s due process right to assert and prove individual affirmative defenses, the employer argued that the additional requirements that exist under California law to establish a “factor other than sex” defense would make it impossible to decide their affirmative defenses on a class-wide basis: “[employer] argues that it has a due process right to explain the bona fide reasons why certain employees are paid differently than others, including the critical nature of a particular role or the exceptional education or experience of a hire.”252 The court rejected this argument. While a defendant may have a 246 Ellis v. Google, LLC, No. CGC-17-561299, 2021 WL 4169813 (Cal. Super. Ct. May 27, 2021). 247 Am. Compl. ¶¶ 2-3, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Jan. 3, 2018). The court initially held that plaintiffs’ class definition was simply too broad in that it failed to allege a common policy or course of conduct applicable to the entire class. Without such a policy, it was impossible to identify class members who had valid claims from those who did not, rendering plaintiffs’ proposed class unascertainable. See Order Sustaining Def. Google Inc.’s Dem. to Pls.’ Class Action Compl. At 4, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Dec. 4, 2017). 248 Am. Compl. ¶¶ 40-41, Ellis, No. CGC-17-561299. The court upheld the class definition in the amended complaint, finding that “Plaintiffs allege that [employer] has a company-wide policy for setting compensation that includes considering an employee's prior salary in deciding her starting salary and/or job level,” and that those allegations “are sufficient at this stage to demonstrate that common issues of law and fact predominate over individualized questions.” Order Overruling Def.’s Dem. to First Am. Compl. and Den. Alternative Mot. to Strike, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Mar. 27, 2018). 249 Ellis, 2021 WL 4169813, at *4. 250 Id. at *5. Remarkably, the plaintiffs’ theory that the employer’s policy of using prior salary history to set starting salaries did not factor heavily into the court’s decision as to the California EPA claims. But the court did rely on that policy to certify the disparate impact claims brought under the California Fair Employment and Housing Act. Under that theory of discrimination, an employer violates the law if it implements a facially neutral policy that has a disparate impact on employees of one gender. The court held that the use of prior salary history was that facially neutral policy: “Plaintiffs contend that they will be able to show, based on common evidence, that [employer’s] pattern and practice of assigning women to lower salary levels at the outset of their employment than it assigned comparably educated and experienced men had a disparate impact on women because women had lower prior pay.” Id. at *6. 251 Id. at *8. As noted above, this issue is far from certain under the federal EPA. The Ellis court cited a Sixth Circuit decision, BeckWilson v. Principi, in support of this point. But in that case, the court specifically noted that “[e]ach of the plaintiffs has identified a specific male . . . who she alleges is performing substantially equal work but who is receiving higher pay for his work.” 441 F.3d 353, 363 (6th Cir. 2006). The Sixth Circuit also held that an EPA claim does not necessarily fail just “because each [plaintiff] has not identified ‘one specific individual who constitutes a perfect male comparator.’” Id. (quoting Wheatley v. Wicomico County, 390 F.3d 328, 334 (4th Cir. 2004) (emphasis in original). But punting on the question of whether two employees are sufficiently comparable is quite a bit different than what the Ellis court appeared to hold, i.e., that it is not necessary for each plaintiff to identify specific comparators to establish a prima facie case. 252 Ellis, 2021 WL 4169813, at *5. The California version of the EPA imposes some additional requirements (as compared to the federal EPA) on employers who hope to rely on the EPA’s catchall “factor other than sex’ affirmative defense. In California and
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