Equal Pay Litigation Trends Update: One Comparator, Two Comparators, Three Comparators, More? Courts Revisit The One-Comparator Rule

Seyfarth Synopsis: This is the second in a series of posts that investigate trends in equal pay litigation resulting from the recent uptick in the number and quality of equal pay lawsuits. This post examines how courts are interpreting an equal pay plaintiff’s obligation to establish a prima facie case. In particular, can they do so by comparing themselves to just one comparator who earned more than they did, even if there are other comparators who earned less or whose compensation would otherwise tend to negate an inference of discrimination? Ambiguity about how this works is a particularly vexing issue for many employers who are constantly on the lookout to ensure their pay practices are not discriminatory. Blind and unreasonable application of a “one comparator” rule by the courts often undermines employers’ efforts to evaluate their pay practices and weigh their liability risk.

This is the second 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, 2022 Update. Our first post on this subject 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 state-law analogues. This post zooms in a little closer to examine how courts are resolving another ambiguity that lies at the heart of the first phase of that burden-shifting scheme: the prima facie case. Specifically, can an equal pay plaintiff establish his or her prima facie case of pay discrimination by pointing to just one comparator who was paid more, even though there are other comparators who were paid less or whose pay would otherwise contradict that narrative?

Before we analyze recent judicial treatment of this issue, a word must be said about the impact this question has on many employers who every day have to decide complex questions about their compensation practices. When examining their own pay practices, employers must view 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 entire group whether any unjustifiable pay disparities exist. Unless the entire group is paid the same­, or is completely homogenous with respect to “protected categories,” such as gender, race, etc., then it will always be the case that at least one member of the group will be paid less than another member who is of a different gender, race, etc. It is impossible to eliminate all such disparities unless the employer adopts a policy of paying everyone in that group exactly the same.

But this is not how most modern workplaces work, and with good reason. In light of that reality, employers often look to see if their compensation practices, in the aggregate, reveal any disparities in pay among different categories of employees. If the aggregate data does not show any such problems, they might reasonably conclude that they do not have a discriminatory pay problem in that group. But, unfortunately, that will not necessarily shield them from having to fight exhausting bouts of equal pay litigation. The trouble arises when courts blindly and unreasonably apply a “one comparator” rule to decide a plaintiff’s prima facie case in situations where viewing the issue from a wider perspective would show that there is no pattern of discrimination in pay within the plaintiff’s comparator group. Nonetheless, some courts have shown a willingness to do exactly that, prematurely shifting the burden onto the employer to prove its innocence before there has been any credible showing of potential discrimination.

For example, in Eisenhauer v. Culinary Institute of America, No. 19-cv-10933 (PED), 2021 WL 5112625 (S.D.N.Y. Nov. 3, 2021), the District Court for the Southern District of New York concluded that the federal and New York EPA statutes, and Second Circuit precedent, prohibit courts from inquiring into other comparators at such an early stage of the case. The employer in that case argued that the plaintiff could not rely on a single comparator to establish her prima facie case, especially since there were other comparable males who made less than her and other females who made more than other males. The court held that it would contravene precedent in the Second Circuit to allow an employer to attack a plaintiff’s prima facie case based on the existence of other comparators. To do so, the employer would have to establish as a matter of fact that those comparators were similarly situated to the plaintiff. But that question must be decided by the jury, and therefore cannot be decided before trial: “Put another way, if Defendant cannot establish the absence of a pay disparity as a matter of law, then Plaintiff's prima facie showing must stand, despite the existence of employees who may serve as counterexamples to wage discrimination at trial.” Id. at *6.

Among other problems, it is hard to see how this reasoning squares with the summary judgment standard articulated by the Supreme Court in Celotex Corp. v. Cattrett, 477 U.S. 317 (1986), among other cases, which requires summary judgment in favor of a moving party where the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. But that is a discussion for another day. Instead, we will examine other recent decisions that have—fortunately—taken a more practical view.

For example, In O’Reilly v. Daugherty Systems, Inc., No. 4:18-cv-01283 SRC, 2021 WL 4504426 (E.D. Mo. Sept. 30, 2021), the District Court for the Eastern District of Missouri waded through a thicket of inconsistent case law to hold that “district courts in this circuit have repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports that the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more.” Id. at *5. The court first took note of apparently inconsistent decisions by the Eighth Circuit on this point. Without trying to resolve that conflict directly, the court concluded that the plaintiff could not base her prima facie case on one comparator: “[Plaintiff] admitted that 10 male employees were either paid less than she or did not perform equal work. Given that alleged comparators that either were paid less did or did not perform equal work outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie EPA claim.” Id. at *6.

Some courts have even devised novel tests to escape the “one comparator” rule in certain circumstances. For example, in Duke v. College of San Francisco, 445 F. Supp. 3d 216 (N.D. Cal. 2020), the District Court for the Northern District of California dismissed the plaintiff’s first attempt at pleading an EPA claim because he had not alleged that he was paid less than the average of wages paid to females who performed substantially equal work. According to the court, “[t]he proper test for establishing a prima facie case in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale.” Id. at 229. It is important to note, however, that other courts have held to the “one comparator” rule even in these circumstances, expressly rejecting the use of a different test for a professional setting.

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In our last post, we examined how the influx of equal pay lawsuits has led some courts to reexamine bedrock issues—such as the nature of the burden-shifting regime itself—that one would have expected was settled long ago for a law that was enacted in 1963. In this case, the reexamination is highly welcome. Too many courts have relied on a kneejerk application of the one comparator rule to find a prima facie case even in the face of copious evidence that refutes that case. Burden shifting regimes certainly have their place, especially where courts are compelled to suss out the inherently veiled issues of motivation, causation, and intent. But while we can admire the clever legal scholars who gave us those methods, we should never lose sight of their ultimate purpose, which is to determine if the cause of any particular disparity is due to discrimination or something else. Thousands of HR and legal professionals are working hard every day to ensure that it is always something else and not discrimination. The courts could make their lives a lot easier if they at least attempted to view this issue from their perspective.

These and other trends impacting equal pay litigation are discussed in much greater detail in Seyfarth Shaw’s yearly report, Developments in Equal Pay Litigation, 2022 Update. We highly recommend that report to any employer facing equal pay litigation or just wishing to know more about it so they can avoid such lawsuits in the future or keep abreast of changes in federal and state equal pay legislation. We look forward to continuing to share our analysis of these issues.