©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 25 similar working conditions.”148 This “equal work” requirement can present some significant hurdles to putative plaintiffs, especially those hoping to certify sprawling collective or class actions. Some states, however, have adopted arguably different standards, such as California’s standard: “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”149 Other states apply a “comparable character,” standard, or other standards that are arguably less lenient than the “equal work” or “substantially similar work” standards.150 The exact meaning of these standards is far from a settled matter, even with respect to the federal EPA, which has been in place since 1963. Actual Job Duties or Content. The requirement that a plaintiff show that they performed the same or similar work as their chosen comparators is often the most significant obstacle to a plaintiff’s prima facie case.151 For instance, in Lukie v. Metlife Group, Inc.,152 the Eleventh Circuit addressed a sex discrimination claim brought under the Florida Civil Rights Act (FCRA), whose discrimination claims are analyzed using the same analytical framework and burdens of proof as claims under Title VII. Applying these standards to the plaintiff's claims that her male counterparts were paid substantially more than her, the Eleventh Circuit rejected plaintiff's attempt to establish a prima facie case of discrimination based solely on a shared vice president title and reporting structure. Despite the plaintiff's evidence of substantial pay differences, the court found her comparator evidence insufficient as a matter of law because the male colleagues she identified "worked in different divisions, maintained different credentials, and were on different pay scales." These material differences meant the identified comparators were not considered to be similarly situated under the FCRA/Title VII framework. 148 29 U.S.C. § 206(d)(1). For a time, Federal employees were required to meet an even higher threshold for proving a prima facie case because controlling Federal Circuit Court authority imposed an extra requirement—that plaintiffs establish that the alleged pay differential was “based on sex.” See, e.g., Gordon v. U.S., 903 F.3d 1248, 1254 (Fed. Cir. 2018), vacated as moot, 754 Fed. App’x (Fed. Cir. 2019) (affirming the dismissal of two Veterans Affairs physicians’ federal EPA claims because they had not established that the alleged pay differential was “based on sex”; i.e., plaintiffs must also show that the “pay differential between the similarly situated employees is ‘historically or presently based on sex,’” but plaintiffs had not done so and could not “satisfy this requirement merely through an inference drawn from the statutory elements of the prima facie case under the EPA”) (quoting Yant v. U.S., 588 F.3d 1369, 1372 (Fed. Cir. 2019)). This extra element of a prima facie case, which only existed in the Court of Federal Claims, was finally overruled in 2023. In Moore v. U.S., 66 F.4th 991 (Fed. Cir. 2023), the Court of Appeals for the Federal Circuit reshaped the elements of an EPA plaintiff’s prima facie case so that they match the elements as articulated by the Supreme Court and every other circuit court, noting that “[e]very other circuit articulates an EPA claimant’s prima facie case the same (or materially the same) way as the Supreme Court.” In discussing the extra element added by the Yant case, namely, a showing that the pay differential “is either historically or presently based on sex,” the court found it problematic in several ways. First, the court held it is “simply extraneous in view of the Supreme Court's articulation of an EPA claimant's prima facie case.” Id. at 996. But secondly, the court held that it violates the principle that an EPA plaintiff need not prove intentional discrimination. According to the Federal Circuit Court of Appeals, “[h]aving to prove—on top of a pay differential across sexes for equal work—that the differential is ‘based on’ sex is tantamount to having to prove that it's because of sex, which is tantamount to having to prove intentional discrimination. Id. (emphasis in original). Finally, the court also held that the extra element distorted the parties’ respective burdens of proof because “[o]nce an EPA claimant carries the burden on the (properly understood) prima facie case, it becomes the employer's burden to prove—as an affirmative defense—that the pay differential has a permissible non-sex-based justification.” Id. (emphasis in original). Accordingly, the court “took the opportunity” to defenestrate the extra element articulated in Yant, concluding: “To make out a prima facie EPA case, a claimant bears the burden to ‘show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’’ . . . Yant is overruled to the extent it is inconsistent with the foregoing.” Id. at 997 (citing and quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). 149 See Cal. Lab. Code § 1197.5(a). 150 See, e.g., Md. Code Ann. Lab. & Empl. §§ 3-304(b)(1)(i). 151 Some courts require plaintiffs in EPA cases to allege enough facts in their complaint to show that they not only share the same job responsibilities with the alleged comparator, but also have the same experience, training, education, and ability. Thurston v. W. All. Bank, No. CV-23-01097-PHX-DLR, 2024 WL 961433 (D. Ariz. Mar. 6, 2024) (dismissing EPA claim in which plaintiff failed to allege facts supporting that she had "similar education, training, or experience" as male comparators, noting that skill includes "experience, training, education, and ability"); Shaw v. North Carolina, No. 5:23-CV-624-FL, 2024 WL 1259452 (E.D.N.C. Mar. 25, 2024) (dismissing EPA claim in which plaintiff merely listed comparators' "names, titles, salaries, and number of employees supervised" without sufficient factual allegations about job duties, qualifications, or showing that jobs were "virtually identical"). 152 Lukie v. Metlife Group, Inc., No. 22-10967, 2024 WL 4471109 (11th Cir. 2024).
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