16 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP case because she could not show that females, as a group, were paid less than males.62 The district court rejected the reasoning of Talwar, in favor of what it viewed as the contrary holding in LavinMcEleney. The court found the latter opinion’s holding to be a more plausible interpretation because the EPA prohibits an employer from paying a woman less than it pays comparable men for equal work, regardless of whether or not other women are also paid unequally for performing equal work. “[I]t is unclear why one individual's ability to recover for violations of the EPA should depend on whether other employees' compensation also violated the law: one would expect one woman's being paid the same as comparable men to prevent her from recovering under the EPA, but not also to prevent other women who were paid less than comparable men from recovering, too.”63 Accordingly, the court held that it was not necessary for an equal pay plaintiff to show that all women as a group were paid less than all men as a group to establish a prima facie case, rather, “a prima facie case requires proof only that the plaintiff was paid less than comparable members of the opposite sex.”64 But the court also appeared to adopt the reasoning that, in a professional setting, a prima facie case requires proof that plaintiff’s compensation was less than the average compensation of comparable employees of the opposite sex. According to this court, therefore, the presence of one comparator who was paid more should be enough to establish a prima facie case, provided that the plaintiff can also show that her pay fell below the average of other comparable employees of the opposite sex. This reasoning is consistent with another recent case, decided by the District Court for the Northern District of California, Duke v. College of San Francisco.65 In that case, the court dismissed the plaintiff’s first attempt at pleading an EPA claim because he had not alleged he was paid less than the average of wages paid to females who performed substantially equal work. According to the court, “[t]he proper test for establishing a prima facie case in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale.”66 Other courts hold to the “one comparator” rule even in these circumstances, expressly rejecting the use of a different test for a professional setting.67 Wage Rates or Total Compensation. The question of how to compare compensation can be quite complicated. For example, litigants sometimes dispute whether a court can find a wage disparity based on differences in base salary or wage rate alone, or whether it must also take into account and compare total compensation, including all bonuses, commissions, benefits, and other forms of remuneration. This is yet another seemingly simple legal question, which has bedeviled the courts and given rise to many arguably conflicting decisions. For example, in Owens v. American Water Resources, LLC,68 the District Court for the Southern District of Illinois dismissed an equal pay claim where the plaintiff earned more in total wages, despite having a lower base salary than her comparator. In that case, the Vice President of Operations of a sewer line warranty provider alleged she was paid less than her predecessor, who worked in the same job, in the same location, and under the same title. Specifically, she alleged that she was making a lower base 62 Hatzimihalis, 2023 WL 3764823, at *6. 63 Id. at *7. 64 Id. 65 Duke v. Coll. of S.F., 445 F. Supp. 3d 216 (N.D. Cal. Apr. 10, 2020). 66 Id. at 229 (quoting Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983)).But when the plaintiff amended his complaint to compare himself with the only other Associate Vice Chancellor of Student Affairs who held that position during the relevant time period, the case was allowed to proceed: “When there is only a single opposite-gender employee with similar work, it is appropriate to compare the plaintiff's pay against that of a single employee.” Id. at 229. 67 See, e.g., Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“[U]nder Fifth Circuit precedent, a plaintiff need only identify one comparator in a position requiring equal skill, effort, and responsibility under similar working conditions as the plaintiff.”) (citing Weaver v. Basic Energy Servs., L.P., 578 F. App'x 449, 451 (5th Cir. 2014); Vasquez v. El Paso Cnty. Cmty. Coll. Dist., 177 F. App'x 422, 425 (5th Cir. 2006); Gillis v. Turner Indus., Ltd., 137 F.3d 1349, (5th Cir. 1998)). 68 Owens v. Am. Water Res., LLC, No. 3:21-cv-01365, 2023 WL 6382368 (S.D. Ill. Sept. 29, 2023).
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