A Second Circuit panel is set to hear arguments Thursday on whether a worker alleging pay discrimination can rely on a single “comparator” of the opposite sex to hold an employer liable under the Equal Pay Act.
The novel question is at the heart of Anita Eisenhauer’s appeal in her lawsuit against the Culinary Institute of America. She argues that her evidence of a single male chef was rightly found sufficient to establish a prima facie Equal Pay Act violation. Eisenhauer will have the backing of the Equal Employment Opportunity Commission during oral arguments.
The significance of the Second Circuit’s answer could be substantial for employees and employers alike, attorneys told Bloomberg Law.
“The implications are huge,” management-side lawyer Matthew J. Gagnon said. The issue “comes up all the time” for businesses when they’re examining or auditing their pay practices, he said.
There may be situations in which one comparator ought to be enough, Gagnon said. But categorically requiring companies to pay every worker in the same job the exact same amount based on a sole comparator, when the evidence doesn’t otherwise show discrimination, will compromise the flexibility and adaptability businesses need to compete, he said. Gagnon is with Seyfarth Shaw LLP in Chicago.
“This case presents an excellent opportunity for the Second Circuit to revisit how Equal Pay Act claims are handled by the courts,” attorney Steven M. Warshawsky of Mount Kisco, N.Y. told Bloomberg Law. “For too long, the promise of the statute—equal pay for equal work—has been undermined by judicial interpretations that allow employers to excuse paying women less than men on the flimsiest of grounds. It’s time to start taking the law seriously,” he said. Warshawsky represents Eisenhauer.
The EEOC declined to comment. The Culinary Institute didn’t respond to Bloomberg Law’s request for comment.
EEOC’s View ‘Extreme’
The Culinary Institute of America will tell the Second Circuit that evidence that employees of the opposite sex “as a group” are paid more for the same job is needed to prove a prima facie Equal Pay Act violation.
The Second Circuit has never held otherwise, and Eisenhauer “selectively ignores” evidence of a male chef who is paid less than her and a female chef who is paid more than the male chef she’s basing her claim on, the Culinary Institute says. Those other chefs aren’t apt comparators, Eisenhauer says.
The EEOC’s and Eisenhauer’s contrary view is “extreme,” it says. The EEOC is arguing for a change of law, the Culinary Institute says.
The argument that women must show more than a single better-paid comparator under the Equal Pay Act is based on a fundamental misunderstanding of gender discrimination, employee-side attorney Deborah K. Marcuse said.
Gender bias “is fundamentally irrational,” Marcuse said. Employers would pay more to all top-performing workers regardless of sex if they acted rationally, she said.
Women face an uphill battle in proving an equal pay claim, Marcuse said. A ruling recognizing that one comparator is enough would bring the Equal Pay Act one step closer to addressing how modern discrimination really works, which is usually through covert or non-explicit bias, she said. Marcuse is with Sanford Heisler Sharp LLP in Baltimore.
Raises Set by CBA
The facts in Eisenhauer’s 2019 lawsuit aren’t much in dispute. She was hired in 2002 at a starting salary of $50,000, while the male chef she compares herself to was hired in 2008 at $70,000.
He had a degree in the culinary arts, 23 years of culinary experience, and teaching experience, while Eisenhauer didn’t yet have a college degree, formal culinary training, or teaching experience, the Culinary Institute says.
Those differences and the yearslong gap between when they were hired justified their disparate starting salaries, which were set in accordance with a gender-neutral collective bargaining agreement, the Culinary Institute says.
Eisenhauer’s suit doesn’t allege discrimination in her starting salary. She claims that the CBA locks in a bias that she can’t overcome and that it ensures that her male comparator is now paid increasingly more than she is despite doing the same job, having the same rank, and having earned the same academic degrees post-hire.
They reached that point in 2017, when his salary rose to $111,032 and hers rose to $104,623 under the CBA. Prior to that, their salaries varied year to year as they received raises at different times that were triggered by their promotions and post-hire academic degrees based on the CBA and a related employee handbook.
The annual CBA salary increases are nondiscretionary and apply to all employees regardless of rank, seniority, and similar factors. But because they’re tied to an employee’s starting salary, they’re not the same amount for each employee.
The gender neutrality is why its system for paying employees was found to be an acceptable factor other than sex under the Equal Pay Act, the Culinary Institute says. That affirmative defense, under which Eisenhauer ultimately lost in the lower court, is another issue on appeal.
The EEOC will tell the Second Circuit that the US District Court for the Southern District of New York properly concluded that one comparator is enough.
Though the circuit has never expressly addressed the issue, other circuits have “unequivocally recognized” that one comparator is sufficient, the agency says. Its compliance manual for employers takes that position and the agency has also advocated it in court, the EEOC says.
The Second Circuit has discussed the Equal Pay Act’s prima facie test as a comparison between two employees in “decades’ worth of cases,” and it has sanctioned cases in which a single comparator was offered, the EEOC says.
Classwide differences in pay don’t need to be shown and holding otherwise would read the Equal Pay Act as a collective action law, the EEOC says.
Unlike other federal job bias statutes, the Equal Pay Act is a strict liability law and doesn’t require evidence of intentional discrimination, it says.
The EEOC is wrong about where courts stand on the issue, the Culinary Institute says. No circuit has ever expressly held that a single comparator is sufficient, it says.
Reading the Equal Pay Act as the EEOC and Eisenhauer advocate would change the legal standard and create a loophole that would swallow the law by making every pay differential an equal pay violation, the Culinary Institute says.
The EEOC’s argument regarding the lack of a need to prove intent seems to be an attempt to divorce the Equal Pay Act from the concept of discrimination, Gagnon said. The purpose of the law is to eliminate job bias. To go further and try to dictate how employers pay their employees “goes too far,” he said.
Courts have traditionally respected that principle in the six decades since the Equal Pay Act’s 1963 enactment, Gagnon said. Employers use human resources and legal professionals to look through their pay data for suggestions of discrimination. To find it, more often than not, it’s necessary to look beyond one comparator, he said.
Easier, but Still Not Easy
It would be inconsistent with the law to presume that one higher paid woman would blow up a comparison that shows unequal pay between two other workers of the opposite sex, Marcuse said. The question at issue should be whether the plaintiff is paid less than male employees for the same or similar work, she said.
The same employers that put their pay data in a “black box” also insist that it must be shown that every man doing equal work is paid more than a woman claiming pay bias, Marcuse said. That makes it easy for them to win quick dismissals under the Equal Pay Act, she said.
A clear rule that one comparator is sufficient would make it easier for an employee to win in a way that’s fundamentally consistent with the remedial purposes of the Equal Pay Act, Marcuse said.
But it wouldn’t make it easy to establish such a claim as the law’s test for proving when another worker is an apt comparator is “excessively burdensome” and there are other obstacles to proving unequal pay, she said.
Arguments to the contrary ignore the case law and statistics on the ground, Marcuse said.
Gagnon and Marcuse aren’t counsel to either party or the EEOC.
Steven M. Warshawsky of Mount Kisco, N.Y., represents Eisenhauer. Jackson Lewis PC represents the Culinary Institute. EEOC attorneys in Washington represent the commission.
The case is Eisenhauer v. Culinary Instit. of Am., 2d Cir., No. 21-02919, oral argument 1/26/23.
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