70 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP Patel v. Tungsten Network, Inc.,526 addressed this issue under California’s EPA statute. In that case, a client relationship manager brought suit under the California EPA and the California Fair Employment and Housing Act (“FEHA”), alleging pay discrimination.527 The court first granted the employer’s motion for summary judgment on the FEHA claim because it had met the requirements of the McDonnell Douglas burden-shifting framework applied to such claims.528 The court came to a different conclusion regarding plaintiff’s claim under the California EPA, specifically because of the heightened standard for a “factor other than sex” defense under that statute.529 It held that a defendant in a California EPA claim must do more than merely “articulate” a legitimate nondiscriminatory reason for a pay disparity, but must instead: “submit evidence from which a reasonable factfinder could conclude not simply that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.”530 Applying that framework, the court held that the plaintiff did not need to establish pretext to avoid summary judgment because “summary adjudication on the EPA claim is proper only if Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue.”531 Burden shifting issues aside, establishing pretext is often a highly fact-specific and granular affair.532 Some courts have focused more heavily on an employer’s state of mind to decide the pretext analysis. Evidence of direct discrimination is often enough to cast an employer’s stated reasons for a pay disparity in doubt. For example, in Egelkamp v. Archdiocese of Philadelphia,533 the court first held that the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs claims under the EPA.”) (citing Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 466 (5th Cir. 2021)). 526 Patel v. Tungsten Network, Inc., No. 2:20-cv-7603-SB-JEM, 2021 WL 4776348 (C.D. Cal. Sept. 15, 2021). 527 Id. at *1. 528 The employer had pointed to differences in experience, qualifications, and education to justify the wage disparity, which the court held was a bona fide, non-discriminatory reason. Id. at *4. Under the burden shifting regime applicable to FEHA claims, the McDonnell Douglas framework, the burden then shifted back to the plaintiff to establish pretext. The court found that plaintiff failed to do so according to the rather stringent standard applied under McDonnell Douglas: “Plaintiff's assertions fail to raise the level of ‘substantial, responsive evidence’ necessary to show Defendant's bona fide, nondiscriminatory reason for the challenged wage disparity was pretextual.” Id. at *5. 529 The court first held that the California EPA should be interpreted in line with the federal EPA with respect to which burden-shifting framework to apply. Prior California precedent had held that the McDonnell Douglas framework should apply to California EPA claims. Id. (citing Green v. Par Pools, Inc., 111 Cal. App. 4th 620, 626 (2003)). However, the court relied on the more recent decision in Rizo to find that: “this burden-shifting test is inapplicable to the federal EPA because ‘EPA claims do not require proof of discriminatory intent,’” and, “[l]ike its federal counterpart, the California EPA also does not require proof of discriminatory intent.” Id. at *6. 530 Id. at *7 (quoting Rizo, 950 F.3d at 1222) (emphasis in original). 531 Id. (quoting Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000)). Because the employer could not come up with contemporaneous evidence that it had in fact set plaintiff’s and her comparators’ salaries according to their different qualifications, the court held that a reasonable juror could conclude that those qualifications do not explain the wage disparity. Id. 532 To name just a few examples, some courts have examined employer’s recruitment activities, see, e.g. Moore v. Baker, No. 2:18cv-00311-KD-B, 2020 WL 4934274, at *12 (S.D. Ala. July 20, 2020) (holding that college that had posted for plaintiff’s comparator’s position on several occasions with different salary ranges, having been unsuccessful in its first attempt with a lower salary, belied the notion of pretext: “considering these facts, expecting parity between a salary needed to retain an employee and a salary needed to recruit an employee with similar experience is not justified”) (emphasis in original), or corporate reorganizations, see, e.g., Anderson-Strange v. Nat’l R.R. Passenger Corp., No. 17-cv-1859-RGA, 2019 WL 2438842, at *4-5 (D. Del. June 11, 2019) (rejecting a claim that the reclassification of a manager’s position to a lower pay grade was merely pretext for discrimination where it was done pursuant to a restructuring plan, there was no evidence that that plan had been inconsistently applied, and where plaintiffs’ proffered comparators managed more stations across a larger geographic territory, and they managed direct reports that were spread across those multiple stations—factors that were consistent with plaintiff’s employer’s rationale for reclassifying her position into a lower pay grade). Other courts have rejected such defenses for various reasons. See, e.g., Clark v. Vivant Solar, Inc., No. 2:17-cv-144-JNP-JCB, 2020 WL 6873942, at *15 (D. Utah Nov. 23, 2020) (rejecting employer’s defense that it needed a regional HR manager who was physically located within plaintiff’s geographic territory to allow for regular visits and more face-toface interactions, finding that, while that could explain the relocation itself, it did not explain why plaintiff was not offered the chance to relocate along with that position); Emanuel v. Ala. State Univ., No. 2:17-cv-658-ALB, 2019 WL 3246398, at *3 (M.D. Ala. July 18, 2019) (rejecting employer’s defense that plaintiff’s compensation was less than his comparator’s due to a “rank adjustment” that was given years earlier to all employees at a time when plaintiff was still an associate professor, but when his comparator was a full professor because: “evidence that the 2009-10 [] Salary Schedule replaced all previous salary considerations demonstrates that there is a genuine issue of material fact as to whether the non-discriminatory reasons offered by [employer] are pretextual”); Fortenberry v. Gemstone Foods, LLC, No. 5:17-cv-1608-AKK, 2018 WL 6095196, at *4 (N.D. Ala. Nov. 21, 2018) (“[A] reasonable jury could find that [employer’s] inconsistent application of its weekend pay policy and its shifting reasons for why it did not pay [plaintiff] for weekend work show that [employer’s] policy is pretext for a gender-based reason for the pay differential.”). 533 Egelkamp v. Archdiocese of Phila., No. 19-cv-3734, 2021 WL 1979422 (E.D. Pa. May 18, 2021).
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