©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 69 than another morning radio host who was male.519 The employer argued that it pays its on-air talent according to a system that measures the quantity or quality of production; the male host’s ratings and revenue were higher and he was more successful in securing advertisers.520 But it had not introduced any evidence to establish that those were the criteria used to determine plaintiff’s comparator’s pay. This was fatal to the “quantity and quality of production defense: “Without evidence of a system applied equally to Plaintiff and [comparator], Defendant fails to meet its burden with respect to this affirmative defense.”521 5. Pretext Even if an employer succeeds in establishing one of the enumerated affirmative defenses, a plaintiff may still succeed on an equal pay claim if he or she can show that the proffered reason for the wage disparity is merely a pretext for discrimination. Inconsistent application of work policies, as well as shifting and inconsistent testimony regarding the proffered justifications, are red flags that can lead to a finding of pretext. Most often this is considered by courts as the final step of the burden-shifting scheme applicable to EPA claims, meaning that the burden shifts back to plaintiff to establish pretext. But a few recent decisions have cast the exact nature of the burden shifting regime in doubt under both federal and state law, at least in some jurisdictions. In Wilder v. Stephen F. Austin State University,522 the District Court for the Eastern District of Texas held that EPA plaintiffs never bear the burden to establish pretext. In that case, a female professor alleged she was paid less than a similarly situated male professor. The employer argued that it had hired plaintiff’s comparator at a higher salary because he had replaced a tenured Full Professor whereas plaintiff had replaced an Assistant Professor, so there was more money in the budget to pay a higher salary when plaintiff’s comparator was hired.523 Plaintiff argued that this explanation was a pretext. Noting the differences in proving pretext under the McDonnell Douglas framework versus the framework applied under the EPA, the court held that, under the EPA, the defendant always keeps the burden of production and persuasion after a plaintiff has established a prima facie case.524 Accordingly, the impetus was on the employer to prove that the pay disparity can be explained by factors other than sex. The court held that it had not done so. Among other things, the court noted that the employer had chosen not to fix the known pay disparity when it was discovered: “There are genuine factual disputes about whether [employer] violated the EPA, and a jury could even decide that [employer] willfully violated the Act in light of the fact that the university chose not to fix a wage gap over the course of two academic years.”525 519 The court first held that the plaintiff had adequately established that the two radio hosts’ positions were comparable: “it is undisputed that Plaintiff and [comparator] were both “on-air talent,” . . . during the same morning daypart. . . . Further, Plaintiff has provided sworn testimony that the duties and responsibilities of Plaintiff's and [comparator’s] shows were the same, that the skills and effort required to hosts the shows were the same, that the supervision of the shows was essentially the same, and that the conditions of Plaintiff's and [comparator’s] employment were the same.” Id. at *4. 520 Id. at *4, 7. But the court held that, rather than evidence of any real system, the employer had merely cited “its Operations Manager's amorphous explanation of what he considers in determining salaries.” Id. at *7. 521 Id. (emphasis in original). 522 Wilder v. Stephen F. Austin State Univ., 552 F. Supp. 3d 639 (E.D. Tex. 2021). 523 Id. at 652-53. Plaintiff argued that this defense should fail as a matter of law, likening it to the discredited “market forces” defense, which attempts to justify a wage disparity on the basis of the different market prices for male workers versus female workers. Or, as the court put it, “defendants cannot avoid liability for paying employees of one sex more than the other by chalking it up to inherently discriminatory market practices.” Id. at 653. But the court saw differences between that defense and what the employer was asserting in this case. “Saying we had more money available that year’ is different from saying ‘men are generally paid more in this market.’ The former recognizes financial limitations without regard to a prospective employee's sex, while the latter perpetuates a discriminatory industry practice. Therefore, the court is not willing to say that [employer’s] budget-line defense constitutes a ‘market forces’ argument so as to fail as a matter of law.” Id. 524 The court did acknowledge that several older cases imply that the burden should shift back to the plaintiff to prove pretext after the defendant met its burden to establish an affirmative defense. But the court held this was wrong, relying on the Fifth Circuit’s holding in Lindsley v. TRT Holdings, Inc. to conclude that “the court will always consider pretext if the analysis gets that far, but the burden never shifts back to the plaintiff in an EPA claim.” Id. at 654 (citing Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 466 (5th Cir. 2021)). 525 Id. at 655. Other courts in the same circuit have relied on the same Fifth Circuit case to draw the opposite conclusion. See Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“The burden-shifting
RkJQdWJsaXNoZXIy OTkwMTQ4