36 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP under the EPA, required her to show “positions held by her purported male comparators [were] substantially equal to her position.”235 Plaintiff could not make this showing because she was the only employee who held her job title and duties. The Second Circuit clarified that “a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay,” as is required by the EPA.236 “[A]ll Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.”237 Discriminatory pay claims can be brought successfully under Title VII even if the plaintiff cannot show a purported comparator of the opposite sex earned more.238 But these differences in law are not always enough to save a plaintiff’s prima facie case; the standard under Title VII is not toothless. For example, in Calicchio v. Oasis Outsourcing Group Holdings, L.P.,239 a Chief Human Resources Officer alleged she was paid less than males who worked in other roles that reported directly to the CEO: the Executive Vice President and Chief Financial Officer, the Chief Operating Officer, the Chief Sales Officer, and the Chief Information Officer. The court held that the plaintiff could not state a prima facie case of wage discrimination under the EPA based on those comparators: “While Plaintiff and each of the comparators are high-level executives, the record shows they undertook distinct primary tasks and maintained differing portfolios of responsibility.”240 The court recognized that “Plaintiff's failure to establish a prima facie case under the EPA reflects a persistent problem faced by members of protected classes serving in high-level executive positions.”241 The court then analyzed plaintiff’s claim of gender discrimination under Title VII, noting that “[i]t is true that the burden of showing the similarity of work performed by a female plaintiff and a male comparator is ‘more relaxed’ under Title VII than under the EPA.”242 However, under Title VII, plaintiff still had to show that she and her proffered comparators were similarly situated in all material respects. The court held that she was not “similarly situated” under Title VII’s standard because she did not share the same employment history; her comparators had worked for the employer decades longer than plaintiff, “a difference in employment history that alone prevents them from being ‘similarly situated’ to Plaintiff.”243 On appeal, the Eleventh Circuit affirmed the decision of the district court, noting that “Title VII and the EPA have different burdens of proof,” and that, “[u]nder Title VII, ‘there is a relaxed standard of similarity between male and female-occupied jobs, but a plaintiff has the burden of proving an intent to discriminate on the basis of sex.’”244 The court also compared the burden imposed on plaintiffs seeking to overcome an employer’s proffered explanation for a wage disparity. Under the EPA, a plaintiff “can show pretext by demonstrating weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the proffered reason for the employment action such that a reasonable factfinder could find them unworthy of credence.”245 Under Title VII, on the other hand, a plaintiff has an alternative to the McDonnell Douglas framework, which allows a plaintiff to “survive summary judgment if she presents ‘a convincing 235 Id. at 108 (internal citations omitted). 236 Id. at 110. 237 Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). The Second Circuit acknowledged that its earlier opinions may have confused the district court; it previously held that “[a] claim of unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an EPA claim.” Id. at 109 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995)). 238 See also Balchan v. City Sch. Dist. of New Rochelle, No. 21-cv-04798 (PMH), 2023 WL 4684653 (S.D.N.Y. July 21, 2023) (finding that plaintiff had pled enough facts to establish a prima facie case under Title VII, but not under the EPA because “in the Title VII context and ‘at the motion to dismiss stage,’ evidence of similarly situated comparators ‘is not necessary,’ while her “Equal Pay Act claim fails because she does not allege any facts about actual job duties of the comparators discussed”; similarly, her New York State Human Rights Law claim survived because the 2019 amendment to that law aligned it with the standard under Title VII) (citations omitted). 239 Calicchio v. Oasis Outsourcing Group Holdings, L.P., 584 F. Supp. 3d 1215 (S.D. Fla. 2021). 240 Id. at 1234. Among other things, the court held that the duties and skills of a Chief Human Resources Officer differed materially and were narrower than her comparators’ positions. 241 Id. at 1238. 242 Id. at 1245 (quoting Rollins v. Ala. Comm. Coll. Sys., 814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011)). 243 Id. (quoting Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 (11th Cir. 2019)). 244 Calicchio v. Oasis Outsourcing Group Holdings, L.P., No. 21-12854, 2022 WL 2761720, at *3 (11th Cir. July 15, 2022) (quoting Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992)). 245 Id. The court affirmed the district court’s judgment on that claim because, among other things, the plaintiff failed to identify affirmative evidence to establish pretext, and instead relied on subjective testimony. Id.
RkJQdWJsaXNoZXIy OTkwMTQ4