©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 67 the standard factors used for other raises, the court held that the university “must show that there was an actual legitimate business purpose of [employer] for its focus on these factors to the exclusion of other factors typically considered when awarding a merit raise under the standard factors.”498 However, in McCarty v. Purdue University,499 an employer justified a pay disparity by arguing that the plaintiff’s comparator had started at a higher salary because he had previously worked for the employer.500 That initial pay difference grew over time due to the employer’s merit ranking system.501 The court was persuaded by the fact that plaintiff’s poor performance was consistently documented and communicated to her: “It is clear that [comparator’s] salary was impacted by his successful experience during the nine years before [plaintiff] began employment. The Court finds this to be a reasonable differential that is not based on sex and does not believe a reasonable jury could conclude otherwise.”502 Seniority Systems. Although not as often relied upon as a defense, seniority systems are treated similarly to merit systems. In Duke v. City College of San Francisco,503 an administrator at a community college alleged he was paid less than a female counterpart who performed the same work. However, the court held that his chosen comparator had been an employee with the college for over three years before being hired into the same position as plaintiff. The court concluded that “Defendant has submitted undisputed evidence showing that [comparator] had already been a[n] . . . employee for three years before she was hired to perform the same role as plaintiff . . .. Thus, within the [employer] system, [comparator] had seniority, and it was permissible for her to receive a higher salary than plaintiff.”504 As with a merit system, consistency and proper documentation are key. For example, in Donovan v. Nappi Distributors,505 a female Wine Purchasing Manager for a beverage distributor alleged she was paid less than her male predecessor in the same position. The employer argued that her predecessor’s higher pay was justified by his significantly greater experience and seniority than plaintiff at the company.506 The court held that the employer had failed to establish its affirmative defense by the standard applicable to EPA affirmative defenses, i.e., by a preponderance of the evidence. While it was undisputed that plaintiff’s predecessor had significantly more experience in the industry, the employer’s failure to document the impact of its “seniority system” doomed its defense: “while [employer] claims seniority influences the different compensation, the record is devoid of any documentation supporting a ‘seniority system’ and its corresponding salary calculation.”507 Accordingly, the court held that there was sufficient dispute of material fact for a reasonable jury to find that seniority was merely a pretext for its compensation decisions.508 498 Id. at *12. Although the university had articulated a legitimate reason for those factors, “the same could be said for almost any individual factor it chose to now focus on that somehow relates to teaching, research, or service.” Id. 499 McCarty v. Purdue Univ., No. 4:19-cv-43 JD, 2021 WL 3912564 (N.D. Ind. Sept. 1, 2021). 500 Id. at *3. 501 If an employee ranked in the bottom 10%, they would not be given a merit increase that year. Plaintiff ranked in the bottom 10% each year but one, whereas her comparator never ranked in the bottom 10% and in fact was ranked in the top 25% multiple years. He therefore received a merit increase each year. Moreover, the facts showed that in the one year when plaintiff did not rank in the bottom 10%, she did receive a merit increase. But it was less, in percentage terms, than what her comparator received, due to their different performance rankings that year. Id. 502 Id. at *5. See also Summy-Long v. Pa. State Univ., 715 F. App’x 179, 183 (3d Cir.). In that case, the Third Circuit affirmed dismissal of a female physician’s wage claim because, among other things, numerous items in the record “reflected a lack of academic performance in comparison to her colleagues.” Id. Among other things, she had been urged to increase publications and to obtain external funding to support her research. She also “failed to apply to renew her National Institute of Health grant even after being reminded repeatedly for three years by her superior.” Id. The court held that this evidence established that “[t]he difference in [her] salary compared to her male coworkers resulted from, among other things, her lack of publications and failure to obtain external funding.” Id. 503 Duke v. City Coll. of S.F., No. 19-cv-6327-PJH, 2021 WL 1966599 (N.D. Cal. May 17, 2021). 504 Id. at *8. 505 Donovan v. Nappi Distribs., No. 2:21-cv-70-JAW, 2023 WL 7702137 (D. Me. Nov. 15, 2023). 506 Id. at *95. 507 Id. at *96. 508 Id. The same court came to a similar conclusion in another case brought against the same employer. In Tourangeau v. Nappi Distributors, 648 F. Supp. 3d 133 (D. Me. 2022), a female wine sales representative alleged she was underpaid compared to her male peers because she was paid at a 2% commission rate while they were paid at a 3% rate. At the time she was hired, her
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