22 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP University,120 the Fourth Circuit affirmed a decision that rejected an attempt by a tenured Associate Professor in the Department of Sociology to use statistics to establish that she was paid less than termappointed Associate Professors in other departments.121 The court noted the unique features of academia that present special challenges for the EPA claimant: “[p]rofessors are not interchangeable like widgets. Various considerations influence the hiring, promotion, and compensation of different professorial jobs.”122 The Fourth Circuit noted that, in the academic context, “work is an exercise in intellectual creativity that can be judged only according to intricate, field-specific, and often subjective criteria.”123 Accordingly, an EPA plaintiff must provide the court with more than broad generalities to establish a claim.124 The Fourth Circuit held that plaintiff’s expert had failed to identify a general disparity between the pay of men and women at the university: “[h]is efforts revealed no statistically significant disparity within each ‘school.’ If anything, this evidence undermines [plaintiff’s] claimed inference of discrimination.”125 In Bridewell-Sledge v. Blue Cross of California,126 a California state court based its denial of class certification on a close analysis of the parties’ competing expert reports.127 The court held that plaintiffs’ expert had failed to apply the proper criteria for assessing the potential wage differential under the California Fair Pay Act because the law only prohibits such wage disparities for employees doing “substantially similar work” when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.128 The court rejected plaintiffs’ expert’s model, and denied class certification, holding that it “does not properly analyze the pay rates of putative class members and juxtapose those against employees who perform substantially similar work.”129 120 Spencer v. Va. State Univ., 919 F.3d 199 (4th Cir. 2019). 121 The district court had held, among other things, that the plaintiff had failed to establish that those positions were the same, noting that: “the functional responsibilities that comprised ‘teaching a class’ and the skillset required in doing so varied across all three departments.” Spencer v. Va. State Univ., No. 3:16-cv-989-HEH, 2018 WL 627558, at *9 (E.D. Va. Jan. 30, 2018). But the court also held that the analysis performed by plaintiff’s own expert showed that the university did not suffer from any systemic gender-related wage disparity. Id. at *10. Among other things, plaintiff’s expert found that plaintiff’s comparators were overpaid in comparison to their peers, including both male and female faculty members, and that there was not a statistically significant level of male faculty being paid more than their female counterparts by school. Id. The district court concluded that the “absence of systemic discrimination combined with improper identification of a male comparator suggests a failure to establish a prima facie case.” Id. (quoting Stag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 950 (4th Cir. 1995)). 122 Spencer v. Va. State Univ., 919 F.3d 199, 204 (4th Cir. 2019). 123 Id. at 205. 124 Id. 125 Id. at 206. 126 Bridewell-Sledge v. Blue Cross of Cal., No. BC477451, 2018 Cal. Super. LEXIS 3879 (Cal. Super. Ct. Aug. 28, 2018). Plaintiffs’ expert performed a regression analysis that sought to take account of race, sex, years of company services, age, and educational attainment to conclude that males were paid more relative to females in a manner that was both large in absolute magnitude of the pay differential, and statistically significant. 127 Id. at *39. California courts may consider statistical evidence as “indicators of a defendant’s centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.” Id. at *26 (quoting Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 333 (Cal. 2004)). Even though there is no requirement under the California Fair Pay Act or the federal EPA for plaintiffs to prove intentional discrimination or discriminatory animus, courts often allow the use of evidence—including expert statistical evidence—that would tend to demonstrate intentional discrimination. See also Storrs v. Univ. of Cincinnati, No. 1:15-cv-136, 2018 WL 684759, at *3 (S.D. Ohio Feb. 2, 2018) (“[Plaintiff] may present facts and argument regarding sex discrimination to the extent these facts (1) prove the elements of her EPA claim, (2) demonstrate that [employer] acted willfully, and (3) rebut [employer’s] affirmative defense that the discrepancy was based on a factor ‘other than sex.’ Although intentional discrimination is not an element of an EPA claim, courts typically allow evidence that demonstrates that the defendant acted willfully or suggests that the defendant’s affirmative defense is pretextual.”) (emphasis omitted) (citing Boaz v. Fed. Express Corp., 107 F. Supp. 3d 861, 891 (W.D. Tenn. 2015) (“Although intent to discriminate is not a requisite element for making out an EPA claim, a showing of discriminatory motivation may be used to demonstrate that an affirmative defense on which the employer relies is in fact pretextual.”) (quotation omitted); Simpson v. Merchs. & Planters Bank, 441 F.3d 572, 580 (8th Cir. 2006)). 128 Bridewell-Sledge, 2018 Cal. Super. LEXIS 3879, at *44. 129 Id. at *47 (emphasis in original). Plaintiffs’ expert had attempted to control for location and job category using the EEOC’s EEO-1 categories to establish that any two individuals within the same EEO-1 category were performing “substantially similar work.” Id. at *44-47. The employer’s expert opined that because there are only ten such categories, they would, by necessity, tend to group employees within the same category who are demonstrably not performing “substantially similar work” within the meaning of California law. The employer’s expert noted, among other things, that “over 80 percent of the records in [plaintiff’s expert’s] analytic file fall into a single EEO-1 occupational category, [plaintiff’s expert’s] model has effectively no statistical control to situate employees with respect to their skill, effort and responsibility.” Id. at *45. Without the use of any statistical methodology to assess
RkJQdWJsaXNoZXIy OTkwMTQ4