EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 41 Inc. , 300 in which the EEOC participated as amicus curiae. In that case, the Fourth Circuit vacated the decision of the lower court because it had applied an incorrect legal standard to an EPA claim. The plaintiff in that case was paid a lower annual base salary than her male comparator, but made up the difference in commissions so that her total compensation was actually higher. The plaintiff – joined by the EEOC as amicus – argued that “the proper metric is the rate at which an employer pays the plaintiff,” not total wages. 301 The District Court had relied on the statutory definition of “wages,” which is defined to include “all forms of compensation . . . whether called wages, salary, profit sharing, expense account, monthly minimum, bonus . . . or some other name.” 302 According to the District Court, this definition required a comparison of total compensation. The Fourth Circuit disagreed, holding that the definition is “beside the point” because: “The term ‘wages’ includes commissions because, just as with salary, an employer could not pay commissions to a female employee at a lower rate than a similarly situated male employee. This does not mean that all types of remuneration should be combined into one lump sum when comparing the earnings of a male and female employee.” 303 The court supported its reasoning by pointing out an absurdity that could result from adopting the District Court’s position: “As a matter of common sense, total remuneration cannot be the proper point of comparison. If it were, an employer who pays a woman $10 per hour and a man $20 per hour would not violate the Equal Pay Act as long as the woman negated the obvious disparity by working twice as many hours.” 304 Despite this seemingly obvious application of the law to fact in this situation, many courts have concluded that the proper comparison looks at employees’ total compensation, rather than just parts of compensation. Lawsuits brought under the EPA tend to be highly fact-driven and therefore notoriously difficult for employers to dispense with through motion practice before trial. This is especially true when it comes to EEOC-initiated litigation. 305 Several recent decisions are illustrative of this trend. For example, in EEOC v. University of Miami , 306 the EEOC alleged that the University paid a female professor less than her counterpart who performed the same job. The University had hired the charging party as an associate professor during the same year that it hired a male professor with comparable qualifications for a lower- ranked position in the same department at a higher salary. 307 Thereafter, the University’s policy of making fixed pay increases only exacerbated the situation over time, so that by the time they became full professors, the male professor made approximately $28,000 more than the female professor. 308 The University argued that the professors did not perform substantially equal work and that the salary discrepancy could be explained by a factor other than sex. The court first held that a reasonable jury reviewing the duties of the two professors could conclude that their positions were substantially equal. 309 Although the two professors taught different political science specialties, the court noted that they both have doctorate degrees, generally teach the same number of courses at the introductory and advanced levels, and are subject to the same University requirements regarding teaching and research. 310 The University argued that the two professors were not comparable because of their different areas of specialization and because they published in different journals, and because the male professor had published in more prestigious journals. The court found this evidence 300 Sempowich v. Tactile Systems Technology, Inc. , No. 20-2245, 2021 WL 5750450 (4th Cir. 2021). 301 Id. at *7. 302 Id. at *8 (quoting 29 C.F.R. § 1620.10). 303 Id. 304 (quoting Ebbert v. Nassau County , No. 05-CV-5445, 2009 WL 935812, at *3 (E.D.N.Y. Mar. 31, 2009). 305 EPA lawsuits therefore put a premium on fact gathering, something that the EEOC typically excels at given its broad investigative and administrative subpoena powers. See, e.g., EEOC v. VF Jeanswear, LP , 769 F. App’x 477, 478 (9th Cir. 2019) (reversing the district court’s decision limiting an EEOC subpoena, holding that “there is no legal basis for limiting the scope of the relevance inquiry only to the parts of the charge relating to the personally-suffered harm of the charging party. Indeed, we have held otherwise. EEOC subpoenas are enforceable so long as they seek information relevant to any of the allegations in a charge, not just those directly affecting the charging party”). 306 EEOC v. University of Miami , No. 19-CV-23131, 2021 WL 4459683 (S.D. Fla. Sept. 29, 2021). 307 Id . at *6. 308 Id . 309 Id . at *8. 310 Id .