©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 39 The court first held that it was entirely reasonable for the employer to have considered the replacement’s prior salary in their salary offer.312 The court also held the employer was justified in raising the replacement’s salary due to its consideration of internal equity concerns. Among other things, the employer had reviewed the pay rates of ten other clinical care nurse quality coordinators in different regions of the state, finding that all were female and most had been paid more than plaintiff.313 The court therefore concluded that “[t]here is no doubt at all that internal equity was considered in determining [comparator’s] salary, and it is a sex-neutral basis for coming up with his salary.”314 Although the implication of the court’s reasoning is that plaintiff’s salary must have been set too low, when compared to the employer’s own internal equity analysis, the court held that she “was hired at a different point in time, and with different work experience than [comparator],” and that it did not know anything about the employer’s budget when plaintiff was hired several years earlier, “or whether she tried to negotiate a higher salary (like [comparator] did), or if she accepted what she was initially offered.”315 Accordingly, the court held that the plaintiff had failed to show a sex-based wage differential. The variety of ways that economic considerations intrude upon employers’ compensation decisions, and the ways that those decisions will be viewed by a court, are difficult to categorize or generalize about. Business considerations vary widely. To take just a few recent examples: In one case, the Eighth Circuit held that a school district had adequately explained the fact that plaintiff’s job had been targeted for downsizing because the subject that plaintiff taught did not appear on statewide testing and therefore did not require two programmers, and because the director of fine arts could handle both elementary and secondary fine arts programming.316 In another recent case, a court held that an employer had justified a pay disparity between the current occupier of a position as compared to her predecessor where it was clear that the plaintiff’s position was temporary; the court held that the temporary nature of a position may constitute a factor other than sex to justify an otherwise illegal pay disparity provided that the position was temporary in fact, and that the employee in that position knew it was temporary.317 And another court held the salary hiring guidelines put in place by the USPS could justify a pay disparity where those guidelines allowed for an offer to be made that was up to five percent higher than a new hire’s private sector salary in order to stay competitive to attract talent from the private sector.318 Employers should beware, however, that fine-grained differences between employees—while perhaps legitimate as “factors other than sex”—will often not be weighed and decided by a court prior to trial. 312 Id. at *4. 313 Id. at *6. 314 Id. 315 Id. 316 Routen v. Suggs, 772 F. App’x 377, 378-79 (8th Cir. 2019) (holding that plaintiff’s sex was not a reason for her pay cut or the reduction in the length of her contract because the evidence at trial showed that the school district had taken these actions because of economic and administrative concerns, rather than discrimination). 317 Cavazos v. Hous. Auth. of Bexar Cnty., No. SA-17-cv-00432-FB, 2019 WL 1048855, at *7 (W.D. Tex. Mar. 5, 2019) (holding that the temporary nature of a position may constitute a factor other than sex to justify an otherwise illegal pay disparity, but denying summary judgment because the evidence did not establish as a matter of law that plaintiff’s performance as an interim Executive Director could be considered a temporary reassignment because, among other things, she had been told that she was the search committee’s second-choice candidate and that she would be automatically selected if the first choice-candidate declined (which he did)). 318 Ruiz-Justiniano v. U.S. Postal Serv., No. 16-cv-1526 (MEL), 2018 WL 3218363 (D.P.R. June 29, 2018) (holding that salary guidelines in place at the time of the female comparator’s hire, which allowed her to be given an offer up to five percent higher than her private sector salary and was intended to allow USPS to stay competitive in outside hiring, justified pay disparity and was not pretext). See also Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1010 (7th Cir. 2018) (holding that a salary freeze provided an adequate justification for a pay disparity because: “there is nothing from which we may reasonably infer that there were ways to circumvent the salary freeze, and that because the District did not take such measures, the District was simply choosing not to increase [plaintiff’s] salary.”); Reddy v. Ala. Dep’t of Educ., No. 2:16-cv-01844-SGC, 2018 WL 4680152, at *6-7 (N.D. Ala. Sept. 28, 2018) (holding that employer adequately justified pay disparity between two physicians on the basis of those physicians’: (1) different levels of relevant experience; (2) different levels of clinical practice experience; (3) different medical specialty; and (4) prior salary history); Hayes v. Deluxe Mfg. Ops. LLC, No. 1:16-cv-02056-RWS-RGV, 2018 WL 1461690 (N.D. Ga. Jan. 9, 2018) (“[Employer] has shown that the pay disparity between [plaintiff] and her male comparators was based on increases in the starting hourly wage over the years, market considerations, merit-based increases, and consideration of an applicant's experience and qualifications, and it has therefore offered factors that were not based on sex and ‘are sufficient to sustain its burden to show that the salary disparity does not result from sex discrimination.’”) (quoting Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991)).
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