©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 35 more demanding job than her comparator.224 But the court held that this argument was outside the scope of what it could remedy under the EPA, noting: “The Supreme Court has declined to endorse the theory of ‘comparable worth’ in EPA cases, ‘under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.’”225 While a court could be called upon to determine whether two jobs are substantially equal, asking a court to determine how much salaries of two unequal jobs should differ “strains the competence of the litigation process.”226 Federal vs. State Requirements. One of the most significant open questions in equal pay litigation is how courts will interpret the “substantially similar” standard that was created by several new state laws, as compared to the “equal work” standard found in federal law. At least one court has held that there is no daylight between those standards, despite the slight difference in wording. In an unpublished opinion, Pak v. GitHub, Inc.,227 the California Court of Appeal for the First District held that the new California standard was actually meant to realign California law with the federal standard. In that case, a former associate general counsel alleged she was underpaid compared to her boss, the general counsel, and another female comparator who did not share plaintiff’s Asian heritage, a vice-president of law and policy. The court held that the 2016 revision to California’s equal pay law “did not materially alter the definition of ‘equal work’ or the analysis of that issue reflected in prior state and federal cases,” but instead, “the amended standard was very close to that which has long been applied by courts under the federal Equal Pay Act.”228 Rather than changing the standard applied under the federal EPA, the court held that the law “simply brought that section in line with case law under the federal EPA.”229 Applying that standard, the court held that plaintiff failed to establish that her comparators performed substantially similar work. Among other things, it found that the general counsel had been at the company for much longer, had performed admirably in his role, and always had considerably more responsibility than plaintiff.230 The court found similarly with respect to plaintiff’s other comparator, noting that the vice president of law and policy performed different work than an associate general counsel, that she had “broad responsibilities in management, policy work, and legal projects,” and, “had significantly more managerial responsibility.”231 The court concluded: “The undisputed facts demonstrate both [general counsel comparator] and [vice president comparator] had greater and substantially different responsibilities than [plaintiff]. When viewed as a composite of skill, effort, and responsibility, [plaintiff] did not perform substantially similar work to either comparator.”232 EPA vs. Title VII Claims. Finally, plaintiffs who pursue their claims under both the EPA and Title VII— and the employers who defend against those claims—must be cognizant of the different standards applied to determine proper comparators under those statutes. Many courts have held that the EPA and Title VII pay discrimination claims should often be decided the same way.233 However, the Second Circuit recently clarified an important substantive difference between these statutes. In Lenzi v. Systemax, Inc.,234 the plaintiff had alleged violations of the EPA and Title VII related to the setting of her compensation. The district court dismissed her claims, holding that her Title VII claims, like claims brought 224 Id. at *9. 225 Id. (quoting Washington Cnty. v. Gunther, 452 U.S. 161, 166 (1981)). 226 Id. (quoting Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007)). 227 Pak v. GitHub, Inc., No. A159585, 2021 WL 3660375 (Cal. App. Aug. 18, 2021). 228 Id. at *4 (citing 29 U.S.C. § 206(d)). 229 Id. at *5. 230 Id. at *5-6. 231 Id. at *7. 232 Id. at *8. 233 See, e.g., Gallaway v. Rand Corp., No. 2:18-cv-01379-RJC, 2020 WL 1984312, at *14 (W.D. Pa. Apr. 27, 2020) (holding that the analysis regarding the third and fourth elements of a Title VII pay discrimination claim were “aided in large part by the reasoning as to the Equal Pay Act claim, supra. As to the third prong, there is a genuine dispute of material fact that Plaintiff suffered an adverse action when she was paid less than her male comparators who performed similar duties. . . . As to the fourth prong, there is sufficient record evidence to allow a reasonable factfinder to conclude that Plaintiff's performance of the same duties under the same level of supervision gives rise to an inference of unlawful discrimination”). 234 Lenzi v. Systemax, Inc., 944 F.3d 97 (2d Cir. 2019).
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