©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 71 employer’s proffered justifications could shift the burden of proof back to plaintiff.534 Plaintiff pointed to comments made by her supervisor that were demeaning to the employer’s female General Counsel (“when you hire a female as your general counsel, there's a head problem, an ego problem”), among other things. The court held that although this and other statements were ambiguous and subject to competing interpretations, it was nevertheless enough to send the issue of pretext to the jury: “A reasonable jury, weighing the credibility of the relevant witnesses, could find that [plaintiff] was paid less than [comparator] because of her gender even though there was substantial similarity between their responsibilities and relevant experience. When the record evidence is considered as a whole and reviewed in the light most favorable to [plaintiff], a factfinder could, at minimum, disbelieve the [employer’s] reasons for paying [plaintiff] less than [comparator].”535 Absent such evidence, however, courts are often loathe to second guess an employer’s motivations. In Hornsby-Culpepper v. Ware,536 for example, the Eleventh Circuit held that the touchstone of the pretext inquiry centers on the employer’s beliefs, not the employee’s beliefs: “a plaintiff is not allowed to merely recast an employer’s proffered nondiscriminatory reasons or substitute her business judgment for that of the employer.”537 Similarly, in Black v. Barrett Business Services, Inc.,538 the court rejected plaintiff’s attempt to show that an employer’s reasons were a pretext for discrimination because she was not able to present evidence to show discriminatory animus on the part of her supervisors or fellow branch managers.539 Moreover, the employer was able to show that it had hired other female branch managers at salaries that were higher than plaintiff’s salary and higher than other male branch managers, and that there were other male branch managers who, like plaintiff, never received a salary raise, and that it had increased the salaries of other female branch managers over time.540 D.Other Important Substantive Decisions Impacting Equal Pay Litigation 1. Retaliation Claims Because the federal EPA is incorporated into the FLSA, it includes the anti-retaliation provisions of that statute. Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has” engaged in protected 534 Id. at *6 (“The [employer] contends [comparator] was paid more because he was more qualified, had more years of service with the [employer], and had significant experience with supervising employees and managing departments. . . . It also argues [comparator] had significantly greater responsibilities than [plaintiff]. . . . Taking the [employer’s] evidence as true, it points to sufficient facts to meet its relatively light burden.”) (internal citations and quotations omitted). 535 Id. at *7. 536 Hornsby-Culpepper v. Ware, 906 F.3d 1302 (11th Cir. 2018). In that case, a County Clerk complained about wage discrimination when she was hired at a lower salary than her predecessor in that position and her request for a higher salary was denied. Id. at 1307. The employer provided three non-discriminatory reasons for the lower salary, which involved budgetary constraints and the fact that plaintiff had previously been terminated from that position. Id. at 1312-13. Although plaintiff disputed the proffered reasons, the Eleventh Circuit found that she had “failed to point to any affirmative evidence establishing that his proffered reasons were false or a pretext for unlawful sex discrimination.” Id. at 1314. 537 Id. at 1313 (quoting Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)). See also Hall v. Ala. State Univ., No. 2:16-cv-593-GMB, 2019 WL 137593, at *11 (M.D. Ala. Jan. 8, 2019) (“Merely questioning the wisdom of a reason is not sufficient as long as the reason is one that might motivate a reasonable employer. . . . Hall's arguments question whether ASU should have relied on [comparator’s] experience and success but do not undermine ASU's reliance on those factors. . . . This court cannot conclude, therefore, that a sufficient question of fact as to pretext exists.”). 538 Black v. Barrett Bus. Servs., Inc., No. 1:18-cv-96-CWD, 2019 WL 2250263 (D. Idaho May 23, 2019). In that case, a branch manager of an employee staffing and recruiting company complained she was paid less than equally qualified branch managers at her branch and a nearby branch. The employer argued that plaintiff’s comparators were paid more because they had experience she did not have. Id. at *6. In particular, the employer pointed to the fact that her comparators had significant experience growing and managing their own businesses. The Company’s strategy was to hire branch managers who could successfully build their branch into multi-million-dollar revenue centers. Id. at *7. 539 Id. at *8. 540 Id. at *9.
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