By: Matthew J. Gagnon
Seyfarth Synopsis: One issue that has consistently divided the federal courts is whether an equal pay plaintiff can establish a prima faciecase of wage discrimination by pointing to a single comparator of the opposite sex who is paid more, even where other comparators are paid the same or even less. Two Appellate Courts recently passed on an opportunity to clarify this issue for the lower courts. This lack of clarity has real-world consequences for employers.
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This is the third in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth’s yearly publication, Developments in Equal Pay Litigation, 2024 Update. The two previous posts can be found here and here.
As we have written about before, one of the key issues currently being disputed in equal pay litigation involves a “one-comparator” rule. Applying that rule, some courts have held that a plaintiff may establish a prima facie case under the federal Equal Pay Act (“EPA”) by pointing to the existence of one comparator of the opposite sex who is paid more, despite evidence that would tend to undercut an inference of sex-based wage discrimination. For example, may a plaintiff who is the second-highest paid person among their cohort establish a prima facie case of wage discrimination by comparing themselves to the highest paid person who happens to be the opposite sex? Or does the fact that they are paid more than every other member of their cohort—regardless of sex—undercut their claim of wage discrimination?
Some courts have held that a plaintiff fails to establish a prima facie case if there are a significant number of comparators of the same sex as plaintiff who were paid more than plaintiff, or a significant number of comparators of the opposite sex who are paid less than plaintiff, because those comparators suggest that discrimination is not the cause of plaintiff’s lower pay. Other courts have held fast to a “one-comparator” rule, holding that a plaintiff need only identify one comparator of the opposite sex who is paid more than plaintiff, regardless of how plaintiff’s compensation stacks up against others, of either sex, who do the same work.This question has divided the district and appellate courts. And now that some states’ laws have opened the door to equal pay claims based on differences other than sex (e.g., race, national origin, etc.), this issue is more important than ever.
Two Appellate Courts Leave The Issue...
