28 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP ‘opportunity for advancement’ this is merely semantics. Title VII, not the EPA, affords the remedy for allegations that Defendants discriminated against her in preventing opportunity for advancement by denying her the requisite training.”208 The court also rejected plaintiff’s statistical averages, holding that it fails to compare employees that are similarly situated with respect to the work they perform. The court held that “[e]mployees are not similarly situated simply by ‘Division’ classification. . . .,” rather, the law requires, “consideration of whether the employees were performing ‘substantially equal’ work considering the skills, duties, supervision, effort and responsibilities of the jobs, as well as whether the conditions where the work was performed were ‘basically the same.’”209 Accordingly, the court held that the averages were simply not probative evidence to satisfy an EPA claim. Plaintiffs also often turn to “pay bands” or other hierarchical levels within an organization to try to establish that employees within the same band or level perform equal work. Some plaintiffs have had success using such proxies, especially to survive motions to dismiss at the beginning of a lawsuit. For example, in Baker-Notter v. Freedom Forum, Inc.,210 the court held that a company’s own internal salary review was sufficient to demonstrate comparability among jobs sufficient to survive a motion to dismiss.211 When the case reached the summary judgment stage, the analysis was much more searching. The court first held that: “The ‘equal pay’ prong of the prima facie case is not seriously in dispute here, as the parties agree that [plaintiff] earned more than two other directors in the Operations department . . . and earned less than one . . . .”212 But the court found the responsibilities of plaintiff and her comparator extended over different aspects of the business and therefore “had vastly different content with respect to skills and responsibilities.”213 This was not contested by plaintiff; instead, plaintiff argued that she had a more demanding job than her comparator.214 But the court held that this argument was outside the scope of what it could remedy under the EPA, noting: “The Supreme Court has declined to endorse the theory of ‘comparable worth’ in EPA cases, ‘under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.’”215 While a court could be called upon to determine whether two jobs are substantially equal, asking a court to determine how much salaries of two unequal jobs should differ “strains the competence of the litigation process.”216 Federal vs. State Requirements. One of the most significant open questions in equal pay litigation is how courts will interpret the “substantially similar” standard that was created by several new state laws, as compared to the “equal work” standard found in federal law. At least one court has held that there is no daylight between those standards, despite the slight difference in wording. In an unpublished opinion, Pak v. Github, Inc.,217 the California Court of Appeal for the First District held that the new California standard was actually meant to realign California law with the federal standard. In that case, a former associate general counsel alleged she was underpaid compared to her boss, the general counsel, and another female comparator who did not share plaintiff’s Asian heritage, a vice-president of law and policy. 208 Id. at *14. 209 Id. 210 Baker-Notter v. Freedom Forum, Inc., No. 18-cv-2499 (RC), 2019 WL 4601726 (D.D.C. Sept. 23, 2019). In that case, a Senior Director of Operations for a political nonprofit organization in Washington DC alleged various claims against her employer, including under the EPA. The nonprofit moved to dismiss, arguing that plaintiff had utterly failed to plead facts sufficient to show that the skills, effort, and responsibilities required of her position and her alleged male comparators were substantially equal. Id. at *9. The district court held that plaintiff’s obligation at the motion to dismiss stage was low; she was not required to “show” anything, but only to allege with some plausibility facts sufficient to state a claim for relief. Id. 211 Id. at *9. The complaint pointed to the nonprofit’s own salary survey, which was performed for the alleged purpose of uncovering salary discrepancies. The court held that this was sufficient to suggest that the jobs surveyed were at least comparable: “courts should not require so much detail about similarity at the front end of a lawsuit as to make equal pay laws largely inapplicable to this class of employees.” Id. 212 Baker-Notter v. Freedom Forum, Inc., No. 18-cv-2499 (RC), 2022 WL 798382, at *7 (D.D.C. Mar. 15, 2022). 213 Id. at *8. 214 Id. at *9. 215 Id. (quoting Washington Cnty. v. Gunther, 452 U.S. 161, 166 (1981)). 216 Id. (quoting Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007)). 217 Pak v. Github, Inc., No. A159585, 2021 WL 3660375 (Cal. App. Aug. 18, 2021).
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