©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 33 Successors or replacements in the same position can also be useful comparators to establish the “equal work” requirement.205 However, just as with predecessor comparators, the job must have remained the same since it was held by plaintiff. Courts are cognizant of the fact that the duties of a job can sometimes change simply because a different person, with different capabilities, holds the position. For example, in Polak v. Virginia Department of Environmental Quality,206 the Fourth Circuit held that employees’ different levels of expertise and experience allowed one to take on different roles and responsibilities that made his work unequal to a female colleague who was not qualified to take on those roles, even though they worked in the same position as team members under the same supervisor. In that case, a “coastal planner” of a state environmental agency alleged that she was paid less than a male employee she “worked closely with” and about whom she “believed . . . had the same position and that they were doing essentially the same work.”207 However, their supervisor testified that plaintiff’s comparator had “expertise in coastal hazards, sea level rise, and shoreline erosion,” which plaintiff did not have, and that allowed him to take on roles and responsibilities that plaintiff was not qualified to perform.208 The supervisor testified that “because of his background and experience, [comparator] was doing different and more complex assignments than those given to [plaintiff],” which included working on “more challenging issues” and “more difficult and complex grant applications.”209 Accordingly, the court held that plaintiff had not met her burden to establish the requisite level of equality between her job and her comparator’s: “To be sure, [plaintiff] and [comparator] performed similar work. But the differences in the actual work performed and the level of complexity involved were significant enough that their work cannot be fairly described as ‘substantially equal’ or ‘virtually identical,’ as required to establish a claim under the Equal Pay Act.”210 Similarly, in Miller v. Levi & Korsinsky, LLP,211 a lawyer alleged she was paid less, and on different, less favorable terms, than two comparator lawyers in the same law firm. The court held that the plaintiff could not rely on those lawyers as comparators because of the significant difference in terms of experience and work history between her and those other lawyers. Among other things, the two other lawyers had been successful partners at other significant law firms before joining their current firm, whereas plaintiff had never been a partner.212 Accordingly, the court held that: “Plaintiff has not shown that her ‘length of experience’ or her prior positions render [comparators] appropriate comparators with sufficient shared employment characteristics.”213 Moreover, even if she had been able to establish a prima facie case, the court held that the significant difference in prior experience provided a non-pretextual justification for the 205 See, e.g., Spencer v. Austin, No. 19-cv-7404, 2021 WL 4448723, at *9-10 (N.D. Ill. Sept. 28, 2021) (holding that plaintiff sufficiently alleged that she and her comparator performed equal work because her comparator was her replacement in the same position, rejecting the employer’s arguments that the plaintiff and her replacement had different job titles and could not have worked in “similar working conditions” because their tenures did not overlap, noting that comparators are compared based on actual job duties and performance, rather than titles, and because “employees need not overlap to serve as useful comparators”); Mooberry v. Charleston S. Univ., No. 2:20-cv-769, 2022 WL 123005, at *7 (D.S.C. Jan. 13, 2022) (finding that plaintiff established a prima facie case where she pointed to her successor as coach of the women’s volleyball team as her comparator and where, “[u]pon a review of the record and in a light most favorable to the non-moving party, the Court finds that Plaintiff was required to perform all the additional duties outlined in [comparator’s] contract”). 206 Polak v. Va. Dep’t of Envtl. Quality, 57 F.4th 426 (4th Cir. 2023). 207 Id. at 428. 208 Id. at 430-31. 209 Id. at 431. 210 Id. at 432 (emphasis in original). The District Court for the Southern District of Ohio came to a similar conclusion in Flannery v. Riverside Research Inst., No. 3:18-cv-412, 2021 WL 1192526 (S.D. Ohio Mar. 30, 2021). In that case, an employee who had held several positions at a scientific research company alleged a history of wage discrimination based on, among other things, the fact that she was paid less as a Technical Researcher than the male employee who had taken that position after she was transferred to a different position. Id. at *1. The court held that plaintiff’s male comparator was able to use his enhanced skills to perform functions plaintiff could not do: “As part of his job duties as a Technical Researcher, [comparator] used his computer programming skills and, more specifically, his familiarity with the Matlab program, to perform coding simulations to assist in determining whether proposed solutions for various scientific problems could work outside the laboratory.” Id. at *5. Moreover, plaintiff had provided no evidence to dispute the employer’s claim that the Technical Researcher position was changed prior to the comparator’s hire such that it required the programming skills that plaintiff did not possess. Id. at *6. 211 Miller v. Levi & Korsinsky, LLP, No. 20-cv-1390(LAP), 2023 WL 6293940 (S.D.N.Y. Sept. 27, 2023). 212 Id. at *5. 213 Id.
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