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

• Published date: 13 July 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employment Litigation/ Tribunals
• Law Firm: Seyfarth Shaw LLP
• Author: Mr Matthew Gagnon

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...