EEOC-Initiated Litigation - 2022 Edition

40 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP that the differences in training and experience could not justify the wage disparity, nor could the managers’ different salary demands and expectations. Turning to the EEOC’s Title VII claim, the court first noted that the two statutes apply different standards for establishing a prima facie case, but nevertheless concluded that “[h]aving found that the Plaintiff successfully established a prima facie case under the Equal Pay Act, the Court also finds that the evidence used under the EPA burden is sufficient to establish a prima facie case under Title VII.” 291 The court explained that under the burden shifting scheme of Title VII, “[t]he burden of production now shifts to the Defendant to articulate some legitimate, non-discriminatory reason in light of the four exceptions outlined in the Equal Pay Act.” 292 The employer argued that the comparator’s salary had been set at a time when it needed to hire someone quickly or close that branch, and the comparator manager had made a “take it or leave it” demand that the company felt compelled to take. The court held that that satisfied the employer’s burden under the Title VII burden-shifting scheme “because an employer ‘need only articulate – not prove – a legitimate, nondiscriminatory reason,’” to meet its burden of production. 293 However, the employer was not able to rebut the EEOC’s claims that those purportedly legitimate reasons were merely a pretext for discrimination; the court found it “highly suspicious” that the employer’s reasons had merit in light of the fact that it had sometimes allowed even larger branches to operate for short periods of time without a manager . 294 Whether an employer’s proffered explanation for a wage disparity – its “factor other than sex” – qualifies as an affirmative defense under the EPA has been a frequent target of litigation, and, increasingly, the subject of legislative developments in many states. For example, in EEOC v. Hunter-Tannersville Central School District , 295 the EEOC sought to strike an employer’s affirmative defense, arguing that it could not be a legitimate “factor other than sex” because it was not “job related” in that it did not relate to the performance of the charging party’s job. In that case, the employer had pled as an affirmative defense that the charging party and her comparator had each negotiated their salaries, and that those negotiations resulted in the alleged salary disparity . 296 The EEOC argued that this explanation was deficient as a matter of law because “there is simply no basis for the proposition that a male comparator’s ability to negotiate a higher salary is a legitimate business-related justification to pay a woman less.” 297 The EEOC relied on a Second Circuit case, Aldrich v. Randolph Central School District , which held that: “a job classification system resulting in differential pay must be rooted in legitimate business-related differences in work responsibilities and qualifications . . . . Without a job-relatedness requirement, the factor-other-than-sex defense would provide a gaping loophole in the statute through which pretexts for discrimination would be sanctioned. ” 298 The court rejected the argument that Aldrich held that only job- related factors could constitute a factor other than sex, but noted that other circuit courts and district courts had come to different conclusions as to whether salary negotiations, by themselves, could constitute a valid defense to an EPA claim. Accordingly, given the unsettled nature of the law, the court was unwilling to adopt the EEOC’s interpretation at the pleading stage: “The Court finds that the EEOC did not meet its burden to show that the affirmative defense is insufficient because there is a question of law, specifically whether Aldrich’s job-relatedness requirement would apply to negotiations, which might allow the defense to succeed.” 299 Another frequent focus of litigation concerns the deceptively simple question of whether there exists a wage disparity at all. How should the courts compare different compensation practices to determine whether one is higher than the other? This was the issue in Sempowich v. Tactile Systems Technology, 291 Id. at 647. 292 Id. at 647-48. 293 Id. at 648 (quoting Texas Dept. of Cmty. Affairs v. Burdine , 450 U.S. 258, 258 (1981)). 294 Id. at 648-49. 295 EEOC v. Hunter-Tannersville Cent. Sch. Dist. , No. 1:21-CV-0352, 2021 WL 5711995 (N.D.N.Y. Dec. 2, 2021). 296 Id. at *3. 297 Id. at *2. 298 Id. (quoting Aldrich v. Randolph Cent. Sch. Dist ., 963 F.2d 520, 525 (2d. Cir. 1992)). 299 Id. at *3.