©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 37 bargaining agreement.289 Although the employer school district was able to show with respect to each comparator that there were various reasons why those comparators may have been hired above-step, the court could not say, at the summary judgment stage, that any of those proffered reasons actually justified the wage disparity.290 And in Melgoza v. Rush University Medical Center,291 the employer argued that the pay discrepancy alleged by an Assistant Vice President of a medical center was due to factors other than sex; in particular, it argued that it pays Assistant Vice Presidents according to a pay grade system that is determined based on job description, responsibilities, skills, and education.292 However, the court found that the pay grade system did not explain the pay differential: “[e]ven assuming for the sake of argument that [employer’s] grading system applied to all AVPs, [employer] does not explain how that system resulted in the actual salary differentials.”293 But where the evidence clearly demonstrates a business-related justification for how discretion was applied in setting compensation within a banded compensation system, the use of that discretion should not preclude an employer from relying on that compensation system as a defense to an equal pay claim. For example, in Lochner v. Wisconsin Department of Agriculture, Trade, and Consumer Protection,294 a state civil service employee alleged she was discriminated against with respect to compensation because she was paid less than comparable male employees. The crux of her dispute was that some male employees with less seniority were hired at higher starting salaries under the state’s broadbanding pay structure, while she was repeatedly denied discretionary equity or retention adjustments to keep her salary on par with her peers.295 The state’s broadbanding program allowed state agencies some latitude with respect to setting salaries for new hires, rather than requiring a single, rigid minimum rate. The program was intended to give state agencies a better ability to attract new hires by paying them higher starting salaries based on factors such as, special need, private competition, and unique qualifications.296 The problem with this approach, however, is that it can lead to “salary compression,” meaning that “newer staff are paid similar to or higher than long-term staff; and no mechanism within the state compensation system existed to go back and re-set the salaries of all employees in the class.”297 The state attempted to address this problem by allowing the payment of discretionary equity and retention adjustments, but there was a finite amount of money allocated to such raises, and they were supposed to be granted on the basis of seniority and in consideration of the impact such awards may have on internal equity.298 This resulted in the plaintiff being denied many such awards, even though it meant her salary was falling below other, newer hires.299 Nevertheless the court found in favor of the employer, holding that it had met its burden to show that broadbanding was required in order to meet its recruitment needs: “Even if the court were to engage in second-guessing with the benefit of hindsight, [employer’s] demonstrated success in recruiting and filling the open WMPSS positions with exceptionally qualified recruits would appear to have vindicated [employer’s] judgment.”300 Moreover, the court found that salary compression that resulted 289 Id. at *2. According to the district’s compensation policies, individual teachers were placed into different “steps” and “lanes,” depending on their experience and level of education. There were also unwritten guidelines for lateral hires that would allow, in some circumstances, for individual teachers to be hired “above-step.” The employer articulated five reasons that might justify hiring a teacher with an above-step compensation: (1) an “acute” need to hire teachers with certain certifications or skillsets; (2) a need to fill sudden vacancies; (3) a need to secure the best possible “rock star” teachers; (4) a candidate's excellent credentials or experience and their ability to negotiate a higher salary; and (5) the economic reality at the time of hiring. Id. at *4. 290 However, those discretionary elements meant that plaintiffs were not entitled to summary judgment either: “While this hiring method seems to permit a level of discretion that could allow for sex-based discrimination, it is the province of the jury to determine when, how, and if at all the District did in fact base its decisions on nondiscriminatory factors.” Id. at *21 (emphasis in original). 291 Melgoza v. Rush Univ. Med. Ctr., No. 17-cv-6819, 2020 WL 6565235 (N.D. Ill. Nov. 9, 2020). 292 Id. at *7. The court found that some positions were not graded. Rather, the medical center sometimes identified a position as “admin/tech manager 28,” which did not have any minimum or maximum salary associated with it. Id. 293 Id. 294 Lochner v. Wisc. Dep’t of Agriculture, Trade, and Consumer Prot., No. 19-cv-878-wmc, 2022 WL 3355262 (W.D. Wisc. Aug. 15, 2022). 295 Id. at *1. 296 Id. at *2. 297 Id. at *3. 298 Id. at *10. 299 Id. 300 Id. at *9.
RkJQdWJsaXNoZXIy OTkwMTQ4