Update on trends in equal pay litigation: one comparator, two comparators, three comparators, more? Courts revisit the single comparator rule
Synopsis of Seyfarth: This is the second in a series of articles that examine trends in equal pay litigation resulting from the recent increase in the number and quality of equal pay lawsuits. This article examines how courts interpret an equal pay claimant’s obligation to establish a prima facie case. In particular, can they do so by comparing themselves to a single comparator who earned more than them, even if there are other comparators who earned less or whose remuneration would otherwise tend to negate an inference of discrimination? Ambiguity over how it works is a particularly vexing issue for many employers who are constantly on the lookout to ensure their pay practices are non-discriminatory. The indiscriminate and unreasonable application of the “single comparator” rule by the courts often undermines employers’ efforts to assess their pay practices and weigh their risk of liability.
This is the second in a series of articles examining new and developing trends in equal pay litigation identified in Seyfarth’s annual publication, Evolution of equal pay litigation, 2022 update. Our first Publish on this matter examined two seemingly contradictory approaches to the fundamental burden-shifting paradigm that underlies all equal pay litigation under the federal Equal Pay Act (“EPA”) and its analogous in state laws. This article comes a little closer to examining how the courts resolve another ambiguity that lies at the heart of the first phase of this burden-shifting system: the prima facie case. Specifically, can an equal pay claimant establish a prima facie case of pay discrimination by pointing to a single comparator who was paid more, even though there are other comparators who were paid less or whose wages otherwise contradict this narrative?
Before analyzing the recent legal treatment of this question, a word must be said about the impact of this question on many employers who must decide on a daily basis complex questions concerning their remuneration practices. When reviewing their own compensation practices, employers need to consider their workforce as a whole (often in subgroups). If, for example, there is a group of employees who perform equal or substantially similar work, employers must determine, by looking at the group as a whole, whether there are unjustifiable wage disparities. Unless the whole group is paid the same or is completely homogeneous with respect to “protected categories”, such as gender, race, etc., it will always happen that at least one member of the group is paid less than another member who is of one sex, race, etc. different. It is impossible to eliminate all of these disparities unless the employer adopts a policy of compensating everyone in that group exactly the same.
But that’s not how most modern workplaces work, and for good reason. In light of this reality, employers often seek to see if their compensation practices, as a whole, reveal pay disparities between different categories of employees. If the aggregate data does not reveal such issues, they could reasonably conclude that they do not have a discriminatory pay issue in that group. But, sadly, that won’t necessarily save them from having to fight through grueling equal pay litigation. The problem arises when courts blindly and unreasonably apply the “single comparator” rule to decide a plaintiff’s prima facie case in situations where looking at the matter from a broader perspective would show that he is not there is no pattern of wage discrimination within the plaintiff’s comparator group. Nevertheless, some courts have been willing to do just that, prematurely shifting the burden of proving their innocence to the employer before there has been credible evidence of potential discrimination.
For example, in Eisenhauer v. Culinary Institute of America, No. 19-cv-10933 (PED), 2021 WL 5112625 (SDNY November 3, 2021), the District Court for the Southern District of New York found that New York’s federal and EPA statutes, as well as the Second Circuit precedent, prohibit courts from investigating other comparators at such an early stage of the case. In this case, the employer argued that the plaintiff could not rely on a single comparator to establish her prima facie case, especially since there were other comparable men who earned less than her and other women who earned more than other men. The court held that it would be contrary to precedent in the Second Circuit to allow an employer to attack a plaintiff’s prima facie case on the basis of the existence of other comparators. To do so, the employer would have to establish in fact that these comparators were in a situation similar to that of the plaintiff. But this question must be decided by the jury and therefore cannot be decided before the trial: “In other words, if the defendant cannot establish the absence of a disparity in remuneration at law, then the prima facie case plaintiff’s face must be maintained, despite the existence of employees who can serve as counterexamples to wage discrimination in a lawsuit. Identifier. at 6.
Among other issues, it is difficult to see how this reasoning squares with the summary judgment standard set out by the Supreme Court in Celotex Corp. against Cattrett, 477 U.S. 317 (1986), among other cases, which requires summary judgment in favor of a moving party where the non-moving party has failed to sufficiently demonstrate an essential element of its case for which it bears the burden of proof . But that’s a discussion for another day. Instead, we’ll look at other recent rulings that have – thankfully – taken a more practical view.
For example, in O’Reilly v Daugherty Systems, Inc.No. 4: 18-cv-01283 SRC, 2021 WL 4504426 (ED Mo. Sept. 30, 2021), the District Court for the Eastern District of Missouri waded through a thicket of inconsistent case law to conclude that “the district courts of this Circuit has repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports the fact that the number of men paid as much as or less than the plaintiff greatly exceeds the number of men paid more. Identifier. at 5. The court first took note of the apparently inconsistent rulings of the Eighth Circuit on this point. Without attempting to directly resolve this conflict, the court concluded that the plaintiff could not base its prima facie case on a comparator: “[Plaintiff] admitted that 10 male employees were either paid less than her or were not doing equal work. Since the alleged comparators who were paid less did or did not do more equal work than the single alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie claim of the EPA. Identifier. at 6.
Some courts have even devised new tests to escape the “single comparator” rule in certain circumstances. For example, in Duke v. College of San Francisco, 445 F. Sup. 3d 216 (ND Cal. 2020), the District Court for the Northern District of California dismissed plaintiff’s first attempt to litigate an EPA claim because he did not allege that he was paid less than the medium wages paid to women who perform substantially equal work. According to the court, “[t]The proper test for establishing a prima facie case in a professional setting such as a college is whether the plaintiff is paid less than the average salary paid to all employees of the opposite sex performing substantially equal work and being in a similar situation with respect to any other factor, such as seniority, which affects the salary scale. Identifier. at 229. It is important to note, however, that other courts have held to the “single comparator” rule even in these circumstances, expressly rejecting the use of a different test for a professional setting.
In our last Publish, we looked at how the influx of equal pay lawsuits has led some courts to re-examine fundamental issues – such as the nature of the burden-shifting scheme itself – that might have been expected to arise. that they were settled long ago for a law enacted in 1963. In this case, reconsideration is welcome. Too many courts have relied on a knee-jerk application of the single comparator rule to find a prima facie case, even in the face of ample evidence refuting that case. Burden shifting regimes certainly have their place, particularly when courts are forced to resolve the inherently veiled questions of motivation, causation and intent. But while we may admire the clever jurists who gave us these methods, we must never lose sight of their ultimate goal, which is to determine whether the cause of a particular disparity is due to discrimination or something else. Thousands of HR and legal professionals work hard every day to make sure it’s always about something else and not about discrimination. The courts could make their lives easier if they at least tried to see this issue from their point of view.