68 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP As with the factor other than sex defense, plaintiffs have sometimes challenged these defenses on the grounds that they are inherently discriminatory. For example, in Spellers v. United States,509 an employer argued that plaintiff’s and her comparators’ difference in pay was due to the government’s highly structured and regulated merit system and therefore could not be due to gender.510 Plaintiff attempted to contest this, arguing that the merit system could not function properly because a discriminatory review process corrupted the inputs fed into the system, including about her actual duties and performance.511 The court found those arguments were based on nothing more than speculation: “Because plaintiff acknowledges that the STRL pay system is facially gender-neutral when functioning as intended and with good data, . . . she has conceded the viability of defendant's affirmative defense.”512 Quality and Quantity of production. The “quality and quantity of production” defense is especially important for sales positions, since sales employees are often compensated on commission. For example, in Spurbeck v. Wyndham Worldwide,513 a timeshare sales representative alleged male sales representatives were paid more for the same work. The sales representative position was subject to performance metrics that tracked the eligible dollar value of the vacation ownership (timeshare) interest sold divided by the number of tours that the sales representative saw in a month.514 Plaintiff argued that her employer gave male employees more opportunities to sell and more perks to help them sell.515 The court found no credible evidence to suggest that male employees were treated more favorably with respect to their ability or opportunity to earn more under the same commission schedule. But more importantly, the court held that “[e]ven if Plaintiff had or was able to show evidence of a pay disparity, she would need to contend with Defendants’ evidence that indicates that Sales Representatives were paid the same commission rate.”516 The court held that, because the employer used the same commission schedule to pay all sales representatives, it had adequately shown that its commission-based compensation plan was a system which measures earnings by quantity or quality of production.517 But in Bandokoudis v. Entercom Kansas City, LLC,518 the court rejected the “quality and quantity of production” defense due to the lack of clear evidence as to how it was applied consistently to all employees. In that case, a woman working as on-air talent for a radio station alleged she was paid less employer was in the process of reducing the pay scale of some of its sales representatives to better align with industry norms and to lower payroll costs. Id. at 149-50. The new commission rates applied to new hires; more senior sales representatives were “grandfathered in,” so their rate structure would not be impacted. The plaintiff was both the first female wine sales representative and the first wine sales representative to be hired at the 2% rate. Id. at 208. The court held that a jury could reasonably conclude that the employer’s decision to offer a lower rate to plaintiff was due to discrimination, particularly because it had not introduced evidence of the more senior male representatives’ professional experience. Without such evidence, the Court was “unable to determine whether seniority justified this initial pay discrepancy.” Id. 509 Spellers v. U.S., 157 Fed. Cl. 171 (Ct. Fed. Cl. 2021). In that case, a female computer scientist sued the Department of the Navy, alleging she was paid less than male co-workers for the same work. The plaintiff had been paid at the GS-11 equivalent pay band, while her comparators had been paid at a GS-13 level. Id. at 173. When plaintiff and her peers were transitioned to a new personnel management system, her pay was flagged by the system as too low. Id. She was given a large raise to help her catch up with her peers. Thereafter, she received modest pay increases, but still remained at the GS-12 level for several years. Id. at 174. 510 The employer pointed to its sophisticated and gender-neutral merit-based system, called the NAVAIR Science and Technology Reinvention (“STRL”) Personnel Management Demonstration Project. 511 Id. at 177. 512 Id. (internal citations omitted). 513 Spurbeck v. Wyndham Worldwide, No. 2:20-cv-00346-RFB-NJK, 2022 WL 717925 (D. Nev. Mar. 9, 2022). 514 Id. at *2. Failure to meet minimum sales quotas could subject an employee to immediate termination. The plaintiff was eventually terminated for failing to meet sales quotas. Id. 515 Id. at *7. 516 Id. at *9. 517 Id. See also Cuthbertson v. First Star Logistics, LLC, 638 F. Supp. 3d 581, 594 (W.D.N.C. 2022) (granting summary judgment for employer relying on “quantity and quality of production defense,” where “Plaintiff concedes commissions were determined based on the profitability of agents recruited, and she has not presented any evidence to contradict Defendant's commission calculations based on quality of work recruiting profitable agents,” and “Defendant's unrebutted evidence demonstrates that any difference in commission payments for Plaintiff and her male counterparts was due to individual performance based on both quantity and quality of those recruited”). 518 Bandokoudis v. Entercom Kansas City, LLC, No. 2:20-cv-02155-EFM-GEB, 2022 WL 1460008 (D. Kan. May 9, 2022).
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