©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 37 mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’”246 The court affirmed the denial of both claims. However, in the Title VII context, that failure went to plaintiff’s prima facie case, rather than the issue of pretext: “[Plaintiff] failed to establish a prima facie case by showing a convincing mosaic of intentional discrimination. The evidence relied upon is subjective and would not allow a jury to infer intentional discrimination.”247 B. Significant Class And Collective Action Decisions Unlike the EEOC, which can bring lawsuits on behalf of a class of aggrieved individuals without meeting the requirements for class certification, private litigants must establish that their equal pay lawsuits can be decided on a collective or class-wide basis. The procedures for establishing a collective action under the federal EPA are governed by the opt-in procedures of the Fair Labor Standards Act (“FLSA”). Those procedures can confer a significant litigation advantage to plaintiffs because the standard applied at the conditional certification stage is much more lenient than the standards applied to certify a class action under Rule 23 of the Federal Rules of Civil Procedure or its state-law analogues248. 1. Recent Cases Involving Collective Action Certification Section 216(b) of the FLSA allows an action under the EPA to proceed “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”249 The only statutorilymandated procedural prerequisite to bringing a collective action is that: “no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”250 Although § 216(b) is silent as to how the collective action certification issue should be analyzed, most district courts use a two-step approach.251 At the conditional certification stage, the court does not make any final decisions as to whether a collective action is appropriate. At the more onerous second-stage analysis, the court will ultimately consider the important facts learned through discovery to determine which putative plaintiffs, if any, are similarly situated to the existing plaintiffs.252 246 Id. (quoting Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019)). 247 Id. at *4. 248 Shara v. Binghamton Precast & Supply Corp., No..3:23-CV-0135, 2024 WL 4417134, at *5 (N.D.N.Y Oct. 4, 2024) (holding that Federal Rule 23 should not apply to plaintiff’s EPA claim). 249 See 29 U.S.C. § 216(b) (providing a private right of action “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated”). 250 Id. 251 See Knox v. John Varvatos Enters., Inc., 282 F. Supp. 3d 644, 652-53 (S.D.N.Y. 2017) (citing Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978); Damassia v. Duane Reade, Inc., No. 04-cv-8819(GEL), 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006)). 252 Id. at 654.
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