64 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP outcomes.469 At issue was the different bonus structure plaintiff received as compared to another physician in the same subspecialty. The employer argued that the different bonus structures were justified because they were the result of contract negotiations that were unique to each physician, during which plaintiff was represented by a lawyer.470 After examining the course of the negotiations in detail, the court held that the employer had met its burden to establish the “factor other than sex” defense. “Ultimately, the record provides that Defendants relied on multiple factors other than sex to set Plaintiff's bonus structure differently. It looked at the two physicians’ differing levels of experience, their certifications (or in Plaintiff's case, lack thereof), their prior production, and it determined that this structure would allow Plaintiff to ramp up her new practice. Indeed, the fact that Defendant agreed to change Plaintiff's bonus structure after she initiated negotiations further weakens Plaintiff's claim.”471 In particular, the court held that the plaintiff had failed to show that her bonus compensation plan had been set lower because she is a woman, thus defeating her EPA claim.472 Employers should expect equal pay plaintiffs to continue to challenge factors other than sex that they believe are tainted by discrimination. Those arguments are sometimes successful. For example, in Spiewak v. Wyndham Destinations, Inc.,473 a timeshare Sales Manager alleged she was paid less than male comparators in the same position in violation of New Jersey’s EPA and Law Against Discrimination (“NJLAD”), which is analyzed similarly to a Title VII claim. The employer argued that plaintiff’s lower compensation was the result of the straightforward application of its Compensation Plan, which applies to all Sales Managers.474 But plaintiff argued that the employer had discriminated against plaintiff in terms of the factors and circumstances that impacted her ability to perform under the Compensation Plan: “Plaintiff concedes that she was paid pursuant to the same Compensation Plan, however, she contends that Defendant impacted her commission compensation by consistently assigning her less, and less seasoned, Sales Representatives.”475 Among other things, plaintiff was able to show that she was consistently assigned fewer Sales Representatives than her male counterparts, and with a greater proportion of them assigned to a less-lucrative market.476 She was also able to marshal evidence to rebut the employer’s attempts to show that all such assignments were made in a gender-neutral manner. On the NJLAD claim, the court denied summary judgment to the employer, concluding: “Plaintiff has identified facts and affirmative evidence to contradict or show inconsistencies with the proffered reasons and show that Defendant did not act for non-discriminatory reasons.”477 469 Id. at *4. The parties agreed that the plaintiff had established a prima facie case due to the different bonus structures and the fact that they performed a similar job under similar working conditions. Id. at *7 470 Id. 471 Id. at *10. 472 Id. See also Briggs v. Univ. of Cincinnati, No. 1:18-cv-552, 2020 WL 5760437, at *7 (S.D. Ohio Sept. 28, 2020) (holding that the employer had established that the wage disparity was the result of a factor other than sex because, among other things, plaintiff’s comparator refused to take the position for less than a salary that was already higher than plaintiff’s at the time of hire. The court held that the university’s proffered reasons to explain the wage disparity, including the comparator’s salary negotiations and higher prior salary, were recognized as legitimate justifications by the Sixth Circuit), rev’d, 11 F.4th 498 (6th Cir. 2021); Grigsby v. AKAL Security, Inc., No. 5:17-cv-6048-DGK, 2018 WL 3078769, at *7 (W.D. Mo. June 21, 2018) (holding that salary negotiations, without more, established an employer’s affirmative defense, concluding: “there are no facts which would allow a fact finder to find that [employer’s] decision to pay [plaintiff] more than [comparator] in the Director of Airport Operations position was based on gender because his salary was set through negotiations and he was the best available person for the job, necessitating a higher pay”); Smith v. Office of the Att’y Gen., State of Ala., No. 2:17-cv-00297-RAH, 2020 WL 4015622 (M.D. Ala. July 16, 2020) (finding that employer met its burden to establish that wage disparity was due to factor other than sex where the evidence showed that male comparators had “made it known that they had no interest in positions at the OAG if their overall compensation was not commensurate with what they were earning at the FBI”). 473 Spiewak v. Wyndham Destinations, Inc., No. 20-cv-13643 (KMW-EAP), 2023 WL 869309 (D.N.J. Jan. 26, 2023). 474 Id. at *8. 475 Id. at *9. 476 Id. 477 Id. at *10. The District Court for the Northern District of Illinois came to a similar conclusion in Douglas v. Alfasigma USA, Inc., No. 19-cv-2272, 2021 WL 2473790 (N.D. Ill. June 17, 2021). In that case, a pair of sales representatives alleged, among other things, that they were underpaid compared to their male colleagues. The employer argued that the complaint was self-defeating in that it acknowledged that the male comparators were given more favorable sales territories. “[Employer] argues that Plaintiffs have pled themselves out of court by alleging that [supervisor] gave them unfavorable territory compared to their male counterparts. . .. [Employer] basically reads the complaint as an admission that Plaintiffs were less productive than their male counterparts.” Id. at
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