Equal Pay Litigation Trends Update: Recent Attempts to Clarify the Burden Shifting Framework Applied to Disputes Under the Equal Pay Act | Seyfarth Shaw LLP
Synopsis of Seyfarth: The recent increase in equal pay lawsuits has translated into an increase in court decisions interpreting the provisions of the federal Equal Pay Act and its state analogs. This extensive review has sparked surprisingly new and fresh thinking about how equal pay cases should be decided, even on some issues that until recently seemed like long-established laws. This article will discuss one such trend that is rapidly developing: courts are beginning to question the legitimacy and applicability of Mc Donnel Douglas load transfer framework to solve these types of cases.
Each year, Seyfarth analyzes all decisions having an impact on equal pay disputes and distills this analysis in our annual publication, Evolution of equal pay litigation, 2022 update. Through this process, we are able to identify and track significant legal trends in this area, including new and innovative legal theories driving the plaintiff bar, and which tend to be more effective or more broadly applicable. to employers navigating the modern world. American workplace. While interesting in its own right, an analysis of these trends can also be useful to employers facing potential or actual equal pay litigation, as it can sometimes predict how equal pay complainants will approach certain problems and can reveal pitfalls to avoid. This is the first in a series of articles that will explore some of the most important trends and what they could mean for employers.
The overall increase in activity and interest in this area is certainly one of the most important macroeconomic trends in equal pay litigation. Whether it’s the #MeToo movement or something else entirely, equal pay litigation is having a moment. It has meant more equal pay litigation in absolute terms, but, more importantly, it has also meant more equal pay cases, in the sense that they focus directly on this issue rather than to include it as one of many theories of discrimination. The increase in lawsuits has led to more court decisions interpreting equal pay legislation and more analysis of these laws and, in some cases, more scrutiny of legal issues that once seemed quite settled.
One such question is at the very heart of equal pay litigation: what exactly is the method by which courts should determine liability under the federal Equal Pay Act (the “EPA”). )? The EPA was adopted in 1963, so it is not new. Yet in the past year alone, we have seen courts in multiple jurisdictions come to markedly different conclusions about the fundamental burdens of proof and burden-shifting mechanisms that lie at the heart of equal pay litigation. .
Burden shifting is the method by which many discrimination cases are decided because the courts see it as a means of determining the essential questions of motivation and causation. In order to determine whether the discrimination was the cause of an adverse employment action, one must understand what prompted the decision. This leads to the fundamental paradigm of burden shifting: once a claimant proves that discrimination may have played a role in an employment decision (i.e. establishes a “prima facie” case) , the plaintiff is entitled to a remedy unless the defendant can show that they made the same decision without discrimination. In equal pay cases, this requires the employer to establish one of the affirmative defenses permitted by law to such claims. Essentially, an employer must show that the disputed pay gap is due to some other allowable factor other than gender (or another protected category covered by some state laws).
But even if an employer succeeds in establishing this defence, a plaintiff can still show that the justification offered by the employer is only a pretext for discrimination. The question that has arisen in some recent EPA cases is whether the onus is on the plaintiff to establish the pretext or whether the onus continues to be on the employer. Many courts have adhered to what is called the Mc Donnel Douglas burden shifting framework, named after the seminal Supreme Court ruling, McDonnell Douglas vs. Green, 411 U.S. 792 (1973). In this context, the burden falls on the plaintiff, who then has the obligation to establish a pretext. This method of allocating the burden of proof has come under renewed scrutiny – and rejection – by some courts.
For example, in Wilder vs. Stephen F. Austin State University, 552 F. Sup. 3d 639 (ED Tex. 2021), the court held that EPA plaintiffs never had the burden of establishing a pretext. In this case, a female teacher alleged that she was paid less than a male teacher in the same situation. The employer justified the pay gap by explaining that the salary of the plaintiff’s comparator was higher because he had replaced a tenured full professor, while the plaintiff had replaced an assistant professor, so that there was more money in the budget to pay a higher salary when the applicant’s comparator was hired. The court initially accepted that this explanation was sufficient to establish an affirmative defense in law. The court then considered the plaintiff’s arguments regarding the pretext, noting the differences in the proof of the pretext under the Mc Donnel Douglas framework compared to the framework applied under the EPA.
According to this court, under the EPA, the defendant still retains the burden of production and persuasion after a plaintiff has established a prima facie case. The court ruled that the employer in this case did not assume these charges because, among other things, it chose not to correct a known wage disparity even after it was discovered: [employer] violated the EPA, and a jury might even decide that [employer] deliberately violated the law given that the university chose not to correct a salary gap in two academic years. Identifier. at 655. The court based its decision on a comment made by the Fifth Circuit in Lindsley vs. TRT Holdings, Inc.984 F.3d 460, 466 (5th Cir. 2021), in which this court stated: “Under Title VII and the Texas Labor Code (but not under the Equal Pay Act), if the employer provides such a reason, load it is up to the plaintiff to establish that the reason given by the employer is a pretext. Identifier. at 467 (emphasis added in wilder). It is not the number of other courts that assign the burden of proof, including, coincidentally, another recent decision that relied on the same Fifth Circuit case to come to the opposite conclusion. Seefor example, Mullenix v. Univ. from Texas to Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (WD Tex. 13 Dec. 2021) (“The load transfer framework established in McDonnell Douglas Corp. vs. Green, . . . governs claims under the EPA. “) (quoting Lindley, 984 F.3d to 466).
Likewise, in Patel vs. Tungsten Network, Inc., No. 2:20-cv-7603-SB-JEM, 2021 WL 4776348 (CD Cal. 15 Sept. 2021), the court declined to apply the Mc Donnel Douglas framework for adjudicating a claim under the California EPA, particularly because of what it perceived to be the heightened standard an employer must meet to establish a “factor other than sex” defense under this law. The court first noted that the California precedent held that California law should be interpreted in accordance with the federal EPA, which applied the Mc Donnel Douglas frame. However, the court relied on a recent Ninth Circuit decision, Rizo vs. Yovino950 F.3d 1217, 1223 (9th Cir. 2020) (en banc), to find that under the California EPA the burden is never on a plaintiff to prove the pretense after that plaintiff has established a prima facie evidence.
According to this court, under the California EPA, an employer must do more than simply “articulate” a legitimate, non-discriminatory reason for a wage disparity, but must instead: “present evidence from which a reasonable investigator could conclude no only that the reasons given by the employer could explain the pay gap, but that the reasons put forward actually do explain the wage disparity. Identifier. *7 (quoting Rizo, 950 F.3d at 1222) (emphasis in original). This ended up being the determinative issue in this case because the employer had not presented contemporaneous evidence that it had in fact set the wages of the complainant and her comparators based on their different qualifications – which was the employer’s stated justification for the wage disparity. Therefore, the court held that a reasonable juror could conclude that these qualities did not explain the pay gap.
Often, renewed or increased attention to an issue in American society leads to rapid changes in the law relating to that issue. We have seen this countless times in the past. It now appears that an increased focus on workplace equity could have a similar effect on equal pay litigation. It is surprising, however, how willing the courts are to rethink these issues from the ground up, extracting certain entrenched principles from root and branch where they are deemed to conflict with more recent developments.
These and other trends impacting equal pay litigation are discussed in much more detail in Seyfarth Shaw’s annual report, Evolution of equal pay litigation, 2022 update. We strongly recommend reporting to any employer facing an equal pay dispute or simply wanting to know more about it, so that they can avoid such lawsuits in the future or keep up to date with changes federal and state equal pay legislation. We look forward to continuing to share our analysis of these issues.