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Second Circuit Allows Title VII Pay Discrimination Claim Without Evidence of Higher Paid Comparator

    Client Alerts
  • December 16, 2019

The Equal Pay Act allows employees to bring claims of pay discrimination based on gender by alleging that they were paid less than employees of a different gender who perform the same or similar work. This comparator requirement often proves difficult for plaintiffs, because the employer can often demonstrate that the co-worker offered as evidence of this requirement has substantially different responsibilities, skills or experience.

Employees can also bring pay equity claims under Title VII. In a new decision from the Second Circuit Court of Appeals, that court allowed a gender-based pay discrimination claim under Title VII to proceed without evidence of a comparator. In Lenzi v. Systemax, Inc., the defendant’s only female executive brought a number of claims against the company following her termination, including claims of pay discrimination under both the EPA and Title VII. The district court dismissed the plaintiff’s pay claims on the basis that she did not establish that her higher paid male executive colleagues held positions substantially similar to her own.

The Second Circuit rejected this reasoning, reviving the plaintiff’s Title VII pay discrimination claim. Unlike the EPA, Title VII does not require the plaintiff to show a comparator as part of her prima facie case. As with other claims of discrimination under Title VII, the plaintiff only must show evidence of pay disparities based on a discriminatory intent. The employer then bears the burden of demonstrating factors other than sex behind the pay differences.

While a subtle difference, this decision would allow plaintiffs to proceed with pay-based sex discrimination claims even if they occupy a unique position within the organization. While developing evidence of intent to discriminate is difficult, it may be an easier path to a jury trial than the EPA’s comparator requirement.