48 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP male comparators. The court held that the EPA allows an employer to pay two comparable employees different salaries if that difference arose from a merit system that rewards workers for outstanding experience, training, and ability, so long as the resulting salary differential is not based upon sex.393 Such a merit system must be administered “at least systematically and objectively,” while permitting some level of subjectivity as to the weighing of nondiscriminatory factors.394 The court held that the employer had established its “merit system” affirmative defense because the evidence showed that faculty salaries were set according to performance ratings set by a Budget Committee according to written standards.395 The court then evaluated the history of pay raises in the context of that system and concluded that: “Because the University has provided uncontroverted summary judgment evidence that the Budget Committee and the Dean determined faculty members' pay raises on the basis of a merit system, the University has raised a valid affirmative defense under the Equal Pay Act.”396 Proper documentation and consistent application of such systems are critical to establishing these defenses. Lack of either can prove fatal to such defenses. For example, in McCarty v. Purdue University,397 an employee in a university’s IT department alleged she had been paid less than a male comparator during her entire tenure in that position. The employer argued that plaintiff’s comparator had started at a higher salary because he had previously worked for the university.398 That difference grew over time due to the employer’s merit ranking system.399 The court was persuaded by the fact that plaintiff’s poor performance was consistently documented and communicated to her: “It is clear that [comparator’s] salary was impacted by his successful experience during the nine years before [plaintiff] began employment. The Court finds this to be a reasonable differential that is not based on sex and does not believe a reasonable jury could conclude otherwise.”400 But in Brunarski v. Miami University,401 the court held that a merit system that used vague criteria that were inconsistently applied could not justify a wage disparity.402 Given the lack of evidence that the university’s factors had been communicated to professors prior to their use, and that they deviated from the standard factors used for other raises, the 393 Id. at *6. 394 Id. 395 Id. at *7. The Committee’s work was guided by the “Standards For Law School Performance Evaluation of Tenured and TenureTrack Faculty,” which requires that evaluations of tenured faculty are based on three key metrics: research and scholarship, teaching, and service. The Standards explain the meaning of those terms and how faculty will be evaluated with respect to each of them. Id. It provided a performance rating for each faculty member, which was translated into a raise by the Dean in consultation with the Budget Committee. Id. at *9. 396 Id. at *16. In an earlier decision, the court also excluded plaintiff’s expert witness, a social science researcher, who sought to provide “social framework” testimony regarding the operation of stereotypes and bias that can lead to workplace discrimination against women. Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 4304815, at *2 (W.D. Tex. Sept. 21, 2021). The court held, among other things, that there was simply too great an analytical gap between the general research the expert relied upon and the specific conclusions he was offering about the case. Id. at *6. 397 McCarty v. Purdue Univ., No. 4:19-cv-43 JD, 2021 WL 3912564 (N.D. Ind. Sept. 1, 2021). 398 Id. at *3. 399 If an employee ranked in the bottom 10%, they would not be given a merit increase that year. Plaintiff ranked in the bottom 10% each year but one, whereas her comparator never ranked in the bottom 10% and in fact was ranked in the top 25% multiple years. He therefore received a merit increase each year. Moreover, the facts showed that in the one year when plaintiff did not rank in the bottom 10%, she did receive a merit increase. But it was less, in percentage terms, than what her comparator received, due to their different performance rankings that year. Id. 400 Id. at *5. See also Summy-Long v. Pa. State Univ., 715 F. App’x 179, 183 (3d Cir.). In that case, the Third Circuit affirmed dismissal of a female physician’s wage claim because, among other things, numerous items in the record “reflected a lack of academic performance in comparison to her colleagues.” Id. Among other things, she had been urged to increase publications and to obtain external funding to support her research. She also “failed to apply to renew her National Institute of Health grant even after being reminded repeatedly for three years by her superior.” Id. The court held that this evidence established that “[t]he difference in [her] salary compared to her male coworkers resulted from, among other things, her lack of publications and failure to obtain external funding.” Id. 401 Brunarski v. Miami Univ., No. 1:16-cv-311, 2018 WL 618458 (S.D. Ohio Jan. 26, 2018). In that case, two female university professors alleged they were paid less than comparable men. Among other things, the university attempted to justify the pay disparity as the result of a merit-based system. Id. at *10. The employer argued that plaintiffs’ comparators received larger merit raises because of their involvement in study abroad programs and because of exceptional performance. Id. 402 The court held that the university had failed to establish this affirmative defense because, among other things, the standards for awarding so-called “super-merit” raises were vague and contradictory. Id. at *11. There was no evidence to show that the factors cited by the university had been used previously to award super-merit raises or any other type of raise. Id. Moreover, the court found that the university’s application of the factors ostensibly used to justify the super-merit raises were not “commensurate with satisfaction” of those factors. Id.
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