©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 23 Similarly, in Kassman v. KPMG LLP,130 the court rejected an employees’ attempt to use statistics to prove classwide wage discrimination because the statistical analysis could not adequately account for the differences among individual employees’ job duties and working conditions. Plaintiffs’ expert performed a regression analysis and found statistically significant differences in compensation between men and women, controlling for job level, experience, education, job location, and performance ratings.131 But the employer’s expert concluded that no statistically significant disparity exists when employees are appropriately classified according to specialized job categories.132 The court concluded that plaintiffs had failed to establish that pay and promotion practices are uniform across the company, so there was no reason to rely on aggregated, nationwide statistics.133 New Theories of Wage Discrimination. Some plaintiffs have quite openly attempted to expand the boundaries of wage discrimination claims, arguing that they were unfairly paid even if they were unequivocally paid more than comparators of the opposite sex. For example, in Traudt v. Data Recognition Corp.,134 a female sales representative alleged she was paid less than similarly situated males because her employer had improperly diverted her commissions to other employees, while this had not happened to male employees. The employer paid sales employees according to an incentive plan that included a salary component and a target amount of incentive compensation, which would vary depending on whether and to what extent they met their sales quotas.135 Although plaintiff admitted that the incentive plan was not inherently discriminatory, and the court found that she had failed to provide evidence of a male comparator in the same position who was paid more than her, plaintiff nevertheless based her discrimination claim on her allegations that some of the credit and commissions she had been owed were given to another female employee.136 The court held that this could not support an EPA claim because “Plaintiff provides no evidence that her circumstances were nearly identical to those of a betterpaid employee who is not a member of the protected class, because the alleged ‘better-paid employee’ is a member of the same protected class.”137 Moreover, the court held that plaintiff failed to establish that the “diversion” of commissions she complained of did not happen to male employees as well: “the evidence provided by Defendant indicates that, on occasion, both male and female employees received ‘adjustments’ to their total sales numbers prior to incentive awards being calculated.”138 Accordingly, her theory did not support any relief under the EPA. Many times, the more esoteric theories of wage discrimination involve plaintiffs who were actually paid more than their comparators. Plaintiffs have attempted many theories to try to shoehorn such facts into an equal pay claim, often with little success. In Black v. State of Ohio Industrial Commission,139 a state agency’s Chief Legal Counsel brought an equal pay claim based on a comparison with her successor in the same position. The problem, however, was that plaintiff’s final rate of pay was higher than her successors at the time he was hired. At the motion to dismiss stage, the plaintiff had skirted this inconvenient fact by alleging that, although her successor was hired at a lower wage, the employer had statutory violations on a class basis, the court would have to “individually review a class member's status and assess whether those employees perform ‘equal work’ under ‘similar working conditions’ or ‘substantially similar work when viewed as a composite of skill, effort, and responsibility.’" Id. at *48. 130 Kassman v. KPMG LLP, 416 F. Supp. 3d 252 (S.D.N.Y. 2018). In that case, plaintiffs sought to bring a class and collective action on behalf of more than 10,000 female Associates, Senior Associates, Managers, Senior Managers/Directors, and Managing Directors within the company’s Tax and Advisory Functions from 2009 to the present. Id. at 259. 131 Id. at 263-64. 132 Id. at 265. Rather, the data “reflects a heavier concentration of men in higher compensated units and heavier concentration of women in lesser compensated units.” Id. 133 Id. at 282. Moreover, because the employer allowed individual managers discretion over pay decisions, the court held that “there is no (non-discretionary) uniform causal mechanism for determining pay and promotion operating across the Proposed Collective. This means that there are likely 1,100 defenses to justify why the 1,100 opt-ins were paid as they were. Adjudicating the claims of the proposed collective in a single action would give rise to obvious procedural difficulties and could not assure fair treatment of any party involved.” Id. at 288. 134 Traudt v. Data Recognition Corp., No. 3:21-cv-02703-M, 2023 WL 3220196 (N.D. Tex. May 2, 2023). 135 Id. at *2. 136 Id. at *3. 137 Id. 138 Id. 139 Black v. State of Ohio Indus. Comm’n, No. 2:21-cv-2987, 2023 WL 5935650 (S.D. Ohio Sept. 12, 2023).
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