32 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP gender-based discrepancy in salaries simply because the higher paid position has evolved or no longer exists.”197 The different statutes of limitations for EPA and Title VII claims can be critical when plaintiffs attempt to compare themselves to past positions. In Boatright v. U.S. Bancorp,198 a Managing Director of a financial services firm alleged, under the EPA and Title VII, that she had been paid less than a male comparator. The court held that she could not establish a prima facie case under the EPA because, during the entire relevant time period for that statute, her chosen comparator was her superior, having been promoted to chief of the group in which she was employed.199 As her superior, it was clear that his job was not substantially equal to hers.200 Title VII, however, has a longer statute of limitations. For some of the relevant period, plaintiff and her male comparator shared the same Managing Director job tile. This was enough to establish that he was a proper comparator under the minimal burden required by Title VII.201 Nevertheless, the court held that plaintiff had failed to show discriminatory animus, as required by Title VII but not by the EPA, finding that the differences in pay and resources between her and her comparator were not sufficient to establish animus.202 To be a valid comparator, the job content must also be similar regardless of the time period being examined. For example, in Jackson v. City of Cape Coral,203 a case alleging gender-based pay discrimination under both the EPA and Title VII, the court held that the plaintiff could only establish her prima facie case from January 2020 onward, when she began performing the same essential job functions as her male comparator. For the period before January 2020, the court specifically found that the only proffered male comparator was "an inappropriate comparator for EPA purposes" because the plaintiff and proffered comparator performed materially different job duties within the city's inspection department, despite having similar job titles. The court emphasized that "the controlling factor under the Equal Pay Act is job content—the actual duties that the respective employees are called upon to perform," not job descriptions or titles.204 197 Id. at 592. See also Powell v. New Horizons Learning Solutions Corp., No. 17-cv-10588, 2018 WL 6571216, at *5 (E.D. Mich. Dec. 13, 2018) (“If a female employee is paid less than a male predecessor, the Sixth Circuit permits claims of unequal pay.”) (citing Conti v. Am. Axle, 326 Fed. App’x 900, 914 (6th Cir. 2009)). 198 Boatright v. U.S. Bancorp, No. 18-cv-7293, 2020 WL 7388661 (S.D.N.Y. Dec. 16, 2020). 199 Id. at *12. 200 Among other things, plaintiff’s supervisor “served as the leader and supervisory principal of the San Francisco office and supervised all employees of the [group]. He was in charge of monitoring the performance of all employees and evaluating them. Additionally, he was charged with developing and implementing the [group’s] revenue generation strategies.” Id. 201 The court noted that they shared the same title and internal grade within the employer’s hierarchy, occupied the same level on the company’s organization chart, and had the same job description when hired. Id. at *16. 202 Id. A prima facie case under Title VII also requires the plaintiff to show facts giving rise to an inference of discriminatory animus, an intent requirement that is not required by the EPA. Although plaintiff had pointed to several allegedly discriminatory remarks, including that Washington, D.C. had “bad ... neighborhoods” and was “unseemly,” that the former Chairman of Goldman Sachs “grew up in a really bad neighborhood,” and that “the Obamas are disgusting,” the court held that those statements were “race and gender neutral”: “[a]n employer or supervisor can comment that an urban area has bad neighborhoods or compliment a bank Chairman for having achieved success despite having come from a less privileged background without—by such comments—taking on the burden to justify (even through a burden of production) an adverse employment action for an employee.” Id. at *16-17. Moreover, “an employer or supervisor may make derogatory, but race and gender neutral, comments about a political figure including a President of the United States without giving rise to an inference of discrimination.” Id. at *17. 203 Case No: 2:22-cv-408-JES-NPM, 2024 WL 382392, at *4-5 (M.D. Fla. Feb. 1, 2024). 204 The court granted summary judgment on both the EPA and Title VII claims. Even for the period after January 2020 when the plaintiff established her prima facie case, the court found no genuine issue of material fact regarding the employer's legitimate, non-discriminatory reasons for the pay differential. The city demonstrated that the male comparator's pay was protected by a municipal ordinance that maintained employees' existing pay grades upon reclassification, and that he possessed greater experience in well inspections. The plaintiff failed to produce evidence that these reasons were pretextual.
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