66 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP defendant's showing that the alleged pay disparity was the result of a legitimately implemented merit system.486 Similarly, in Mullenix v. University of Texas at Austin,487 a tenured law professor alleged she was underpaid compared to her male comparators. The court held that the EPA allows an employer to pay two comparable employees different salaries if that difference arose from a merit system that rewards workers for outstanding experience, training, and ability, so long as the resulting salary differential is not based upon sex.488 Such a merit system must be administered “at least systematically and objectively,” while permitting some level of subjectivity as to the weighing of nondiscriminatory factors.489 The court held that the employer had established its “merit system” affirmative defense because the evidence showed that faculty salaries were set according to performance ratings set by a Budget Committee according to written standards.490 The court then evaluated the history of pay raises in the context of that system and concluded that: “Because the University has provided uncontroverted summary judgment evidence that the Budget Committee and the Dean determined faculty members' pay raises on the basis of a merit system, the University has raised a valid affirmative defense under the Equal Pay Act.”491 Proper documentation and consistent application of such systems are critical to establishing these defenses. Lack of either can prove fatal to such defenses. For example, in Toole v. Lakeshore Ear, Nose, and Throat Center, P.C.,492 an African American head and neck surgeon alleged she was paid less than her white male counterparts due to her gender and race. The employer attempted to argue that the alleged pay disparities were the result of its merit system and/or a system that measures earnings by quantity or quality of production. And, in fact, the court found that “[i]t is undisputed that the Executive Committee used an objective mathematical formula based on Payments from insurance, Medicare/Medicaid and patients to determine compensation.”493 But the court held that a reasonable jury could find that such a system did not meet the requirements of a merit defense because the“[employer’s] own admissions counter this affirmative defense.”494 The employer’s President testified that pay was not based on quality or merit because they were unaware of any appropriate metric to assess merit.495 Similarly, in Brunarski v. Miami University,496 the court held that a merit system that used vague criteria that were inconsistently applied could not justify a wage disparity.497 Given the lack of evidence that the university’s factors had been communicated to professors prior to their use, and that they deviated from 486 Id. 487 Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021). 488 Id. at *6. 489 Id. 490 Id. at *7. The Committee’s work was guided by the “Standards For Law School Performance Evaluation of Tenured and TenureTrack Faculty,” which requires that evaluations of tenured faculty are based on three key metrics: research and scholarship, teaching, and service. The Standards explain the meaning of those terms and how faculty will be evaluated with respect to each of them. Id. It provided a performance rating for each faculty member, which was translated into a raise by the Dean in consultation with the Budget Committee. Id. at *9. 491 Id. at *16. In an earlier decision, the court also excluded plaintiff’s expert witness, a social science researcher, who sought to provide “social framework” testimony regarding the operation of stereotypes and bias that can lead to workplace discrimination against women. Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 4304815, at *2 (W.D. Tex. Sept. 21, 2021). The court held, among other things, that there was simply too great an analytical gap between the general research the expert relied upon and the specific conclusions he was offering about the case. Id. at *6. 492 Toole v. Lakeshore Ear, Nose, and Throat Ctr., P.C., No. 21-cv-11850, 2023 WL 3794507 (E.D. Mich. June 2, 2023). 493 Id. at *12. 494 Id. 495 Id. 496 Brunarski v. Miami Univ., No. 1:16-cv-311, 2018 WL 618458 (S.D. Ohio Jan. 26, 2018). In that case, two female university professors alleged they were paid less than comparable men. Among other things, the university attempted to justify the pay disparity as the result of a merit-based system. Id. at *10. The employer argued that plaintiffs’ comparators received larger merit raises because of their involvement in study abroad programs and because of exceptional performance. Id. 497 The court held that the university had failed to establish this affirmative defense because, among other things, the standards for awarding so-called “super-merit” raises were vague and contradictory. Id. at *11. There was no evidence to show that the factors cited by the university had been used previously to award super-merit raises or any other type of raise. Id. Moreover, the court found that the university’s application of the factors ostensibly used to justify the super-merit raises were not “commensurate with satisfaction” of those factors. Id.
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