36 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP the Equal Pay Act, 29 U.S.C. § 206(d).”279 The court found in favor of the employer because plaintiff’s pay was set by the state’s Office of Administration’s Uniform Classification and Pay System. That system established salaries for each position and set initial pay rates based on qualifications and permanent position-related factors, such as working conditions or physical location of work, and/or recruitment or staffing needs.280 Plaintiff argued that she should have been paid more than her predecessor because she had more transferable experience from working in the state’s Attorney General’s Office. But the court found that her experience did not make her eligible for within-grade salary advancement per the operation of the salary system, and held that the court would not sit as a “superpersonnel department that reexamines an entity’s business decisions.”281 And although plaintiff was paid less than three other male colleagues, those employees were at a different pay grade according to the salary system: “Defendants have adequately proved that Ms. Niekamp was at a lower pay grade than those three male colleagues because of her prior work experience and as the result of working in different divisions.”282 Accordingly, the court held that the employer met its burden to establish its “factor other than sex” defense and granted summary judgment in its favor. Similarly, in Akerson v. Pritzker,283 the Bureau of the Census posted a recruiting bulletin that sought candidates to be Partnership Specialists at four salary grade levels. The bulletin specified that candidates must submit separate applications for each grade level.284 The plaintiff in that case applied only for a position at the second-lowest pay grade. Her chosen comparator applied for the same position at a higher pay grade. He was paid more even though his position involved substantially the same, if not identical, responsibilities.285 The court held that “Defendant's employment practice of hiring and compensating individuals based on the job grade he or she applies for constitutes a legitimate factor independent of sex.”286 While this argument can be successful, it is critical for the employer to adhere rigorously to the classification system. At least one court recently held that an employer’s honest mistake in classifying its employees will not serve as a defense to an equal pay claim.287 Moreover, the reliance on a banded compensation system as a “factor other than sex” is sometimes undermined by the fact that most compensation systems allow for a level of discretion within different pay bands, and some allow the system to be bypassed entirely. In those cases, courts will sometimes find that employers have not established that the compensation system fully explains the pay disparity. For example, in In Barthelemy v. Moon Area School District,288 nine male public school teachers alleged they were paid less than similarly situated female teachers in the same school district. The crux of the employer’s defense was the step-wise compensation program, which was determined by a collective 279 Id. at *4. 280 Id. 281 Id (quoting Taylor v. White, 321 F.3d 710, 719 (8th Cir. 2003)). 282 Id. 283 Akerson v. Pritzker, No. 12-cv-10240-PBS, 2021 WL 2295522 (D. Mass. June 4, 2021). 284 Id. at *1. 285 Id. at *9. 286 Id. at *10. The plaintiff had not asserted that she was denied the opportunity to apply for her position at a higher grade level, and she plainly had not. Moreover, the employer was able to show that there was at least one female hired into the same position at the same pay grade as plaintiff’s chosen comparator. Id. at *9. 287 In Johnson v. Canyon Cnty., Idaho, No. 1:19-cv-364-BLW, 2020 WL 5077731 (D. Idaho Aug. 27, 2020), four female Licensed Practical Nurses alleged they were paid less than their male counterparts for equal work. The employer argued that the salary differential was the result of a mistake, whereby one of plaintiffs’ male comparators was assigned a code for a Registered Nurse when he was hired and was paid more as a result of that mistake. The court held that the “factor other than sex” affirmative defense had to be read in light of the other three affirmative defenses, which all relate to job experience, job qualifications, and job performance and were therefore exceptions that were job-related. But the employer’s mistake could not be considered job-related: “Blind adherence to a classification number is actually the opposite of a job-related factor because it is blind to anything akin to job experience, qualifications, or performance.” Id. at *3. 288 Barthelemy v. Moon Area Sch. Dist., No. 2:16-cv-00542, 2020 WL 1899149 (W.D. Pa. Apr. 16, 2020).
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