©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 49 court held that the university “must show that there was an actual legitimate business purpose of [employer] for its focus on these factors to the exclusion of other factors typically considered when awarding a merit raise under the standard factors.”403 Seniority Systems. Although not as often relied upon as a defense, seniority systems are treated similarly. In Duke v. City College of San Francisco,404 an administrator at a community college alleged he was paid less than a female counterpart who performed the same work. However, the court held that his chosen comparator had been an employee with the college for over three years before being hired into the same position as plaintiff. The court concluded that “Defendant has submitted undisputed evidence showing that [comparator] had already been a[n] . . . employee for three years before she was hired to perform the same role as plaintiff . . .. Thus, within the [employer] system, [comparator] had seniority, and it was permissible for her to receive a higher salary than plaintiff.”405 As with a merit system, consistency and proper documentation are key. For example, in Tourangeau v. Nappi Distributors,406 a female wine sales representative alleged she was underpaid compared to her male peers because she was paid at a 2% commission rate while they were paid at a 3% rate. At the time she was hired, her employer was in the process of reducing the pay scale of some of its sales representatives to better align with industry norms and to lower payroll costs.407 The new commission rates applied to new hires; more senior sales representatives were “grandfathered in,” so their rate structure would not be impacted. The plaintiff was both the first female wine sales representative and the first wine sales representative to be hired at the 2% rate.408 The court held that a jury could reasonably conclude that the employer’s decision to offer a lower rate to plaintiff was due to discrimination, particularly because it had not introduced evidence of the more senior male representatives’ professional experience. Without such evidence, the Court was “unable to determine whether seniority justified this initial pay discrepancy.” As with the factor other than sex defense, plaintiffs have sometimes challenged these defenses on the grounds that they are inherently discriminatory. For example, in Spellers v. United States,409 an employer argued that plaintiff’s and her comparators’ difference in pay was due to the government’s highly structured and regulated merit system and therefore could not be due to gender.410 Plaintiff attempted to contest this, arguing that the merit system could not function properly because a discriminatory review process corrupted the inputs fed into the system, including about her actual duties and performance.411 The court found those arguments were based on nothing more than speculation: “Because plaintiff acknowledges that the STRL pay system is facially gender-neutral when functioning as intended and with good data, . . . she has conceded the viability of defendant's affirmative defense.”412 Quality and Quantity of production. The “quality and quantity of production” defense is especially important for sales positions, since sales employees are often compensated on commission. For 403 Id. at *12. Although the university had articulated a legitimate reason for those factors, “the same could be said for almost any individual factor it chose to now focus on that somehow relates to teaching, research, or service.” Id. 404 Duke v. City Coll. of S.F., No. 19-cv-6327-PJH, 2021 WL 1966599 (N.D. Cal. May 17, 2021). 405 Id. at *8. 406 Tourangeau v. Nappi Distribs., No. 2:20-cv-00012-JAW, 2022 WL 17987103 (D. Me. Dec. 29, 2022). 407 Id. at *5. 408 Id. at *51. 409 Spellers v. U.S., No. 18-47C, 2021 WL 5630801 (Ct. Fed. Cl. Dec. 1, 2021). In that case, a female computer scientist sued the Department of the Navy, alleging she was paid less than male co-workers for the same work. The plaintiff had been paid at the GS11 equivalent pay band, while her comparators had been paid at a GS-13 level. Id. at *2. When plaintiff and her peers were transitioned to a new personnel management system, her pay was flagged by the system as too low. Id. She was given a large raise to help her catch up with her peers. Thereafter, she received modest pay increases, but still remained at the GS-12 level for several years Id. at *3. 410 The employer pointed to its sophisticated and gender-neutral merit-based system, called the NAVAIR Science and Technology Reinvention (“STRL”) Personnel Management Demonstration Project. 411 Id. at *6. 412 Id. (internal citations omitted).
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