EEOC-Initiated Litigation - 2022 Edition

42 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP unpersuasive because “the professors’ specializations within the field of political science do not appear to be dispositive as to the question of substantial job similarity,” but “[r]ather, subspecialties are considered when evaluating whether a professor conducted research and was subsequently published in high-ranking journals relevant to their respective specializations.” 311 The court was ultimately convinced that “the quality of [comparator’s] publications and number of cite counts are determinative of this inquiry because the Plaintiff's prima facie case requires a comparison of jobs, not the skills and qualifications of the individuals who hold the jobs.” 312 The University also argued that the salary disparity between the two professors was due to a factor other than sex; namely, they were “market-based,” that annual raises were determined by individual performance, and that multiple salary analyses confirmed that there was no relationship between gender and salary at the University. 313 The court could not credit the “market-based” theory due to the absence of credible evidence as to what the market was at the time the two professors were hired. The court was also not convinced that the pay disparity could be explained by disproportionate performance. Although the University claimed that the charging party published in less prestigious journals than the male professor, the Dean had admitted that he had not reviewed her salary increases or the reasons for the amounts that had been awarded in each year, thus undercutting the University’s proposed explanation. 314 Moreover, the court did find evidence of gender disparities at the University, including evidence that the University placed a higher service requirement on female professors and had proactively increased male professors’ salaries to close the gap with female professors, but had not done so for the charging party, despite the fact that her Department Chair had conceded that she was “grossly underpaid.” 315 Turning to the Title VII claim, the court held that “[b]ecause the EEOC has established its disparate pay claim under the more rigorous analysis of the Equal Pay Act, the court finds that it has met its initial burden of showing its prima facie case under Title VII. ” 316 The court also found that the University had met its burden to articulate legitimate bases for the alleged pay disparity, but, for the same reasons that doomed the University’s defense to the EPA claim, also held that the EEOC had “advanced sufficient evidence to cast doubt on the University's purportedly legitimate basis for the pay differential,” thus meeting its burden to show that those reasons were pretextual . 317 Accordingly, the University’s motion for summary judgment was denied. Written policies regarding salary scales and job categories often factor into pay equity cases, as employers often rely on those policies to prove that salaries were set according to such policies and are therefore not discriminatory. For example, in Enoch Pratt Free Library , the employer pointed out that it used a Managerial and Professional Society Salary Policy (“MAPS”) to determine compensation for newly hired library supervisors. 318 According to the employer, that policy is facially neutral, and clearly permitted the employer to pay the starting salaries that it did. 319 The court held, however, that that policy did not necessarily compel any specific salary to be awarded to a new hire . 320 The MAPS policy left open the possibility that the employer could apply discretion with respect to setting starting salaries. 321 Applying Maryland Insurance Administration , the court concluded that “[the EEOC’s comparator] was hired at a rate not only higher than the female [library supervisors] represented by the EEOC, but also significantly above the salary he had received during his first tenure at [employer]. Given these facts, combined with the 311 Id . 312 Id . 313 Id . at *9. 314 Id . at *10. 315 Id . at *11. 316 Id . at *12. 317 Id . 318 EEOC v. Enoch Pratt Free Library , No. 17-CV-2860, 2019 WL 5593279, at *3 (D. Md. Oct. 30, 2019). 319 Id. at *6. 320 Id. 321 Id.