Page 14 - Litigation

S14 | MONDAY, JULY 17, 2017 | Litigation
| NYLJ.COM
Pay Equity
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male coworkers need not be exactly the same. Rather, the duties may be similar or related. In practice, however, courts have inter- preted the Equal Pay Act’s “equal work” to mean what the words of the new California and Massachusetts statutes provide: “sub- stantially similar work.” For example, in Summy-Long v. Pa. State Univ., the Middle District of Pennsylvania in 2016 held the plaintiff’s Equal Pay Act claim could not survive the defendant’s summary judgment motion because she could not demonstrate a “substantial similarity” between her uni- versity professor job duties and those of the male colleagues to whom she sought to compare herself. Further expounding on the meaning of “equal work,” the Summy-Long court rejected the plaintiff’s argument that “a professor is a professor is a professor,” meaning that any university professor could be aptly compared to any other university professor. But the Summy-Long court also held the plaintiff was not “substantially similar” to the identified male comparators because her “scholarly output and grant awards”—indicia of her level of performance—were far lower. Similarly, in Chiaramonte v. Animal Med. Ctr., the Southern District of New York held in 2016 that the “equal work” standard under the Equal Pay Act and New York Labor Law should be applied to mean “substantially equal work” with “common duties or content.” Applying this standard, the court rejected the plaintiff’s attempt to compare herself—a board-certified primary care veterinarian, with clinical, fund- raising and administrative responsibilities as part of her assignment to the defendant’s President’s Council and role as Director of
Arbitration
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2005); Hill, 105 F.3d at 1148-50. But see Norcia, 845 F.3d at 1290.
Scope of the Arbitration Agreement
Does the Dispute Fall Within the Scope of the Arbitration Agreement? Once the com- pany establishes that there is an agreement to arbitrate, it will need to demonstrate that the dispute at issue falls within the scope of that agreement. The FAA “establishes that, as a mat- ter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr., 460 U.S. 1, 24-25 (1983). Indeed, a claim is presumed to be within the scope of the arbitration agreement “unless it
the Rehab Center—to various male veteri- narians. The proposed comparators ranged from a “very, very sought after” veterinary dermatologist to the heads of specialty ser- vices such as neurology or cardiology. After reviewing the record evidence, the court held the plaintiff had improperly sought to conflate “job significance” with “job content.” It held that, under the applicable legal standards, only the latter, job content, was relevant. The court concluded that the plaintiff’s equal pay claims could not survive summary judgment because she had a “singular status” among the veterinary professionals at the defendant and her proffered comparators were not proper.
It is too early to see reported cases arising under any state’s newly implemented equal pay legislation adopting a standard of “sub- stantially similar work.” But, the case law to date under the Equal Pay Act and the New York Labor Law, which incorporate the “equal work” standard, suggests that application of the concept of substantial similarity, in prac- tice, may be not so different from application of the “equal work” standard.
Litigation Trend: Indicia of ‘Equal Work’ For High-Level Plaintiffs
With the growing attention on pay equity in many forums across the country, courts in recent years have seen numerous high-profile filings of equal pay claims under federal or state law involving high-level, professional female employees as plaintiffs. The allega- tions in these recent filings are a far cry from those in Corning Glass Works v. Brennan, the very first Equal Pay Act case to come before the U.S. Supreme Court. There, the court addressed the legality of a pay differential between female inspectors, who historically
may be said with positive assurance that the arbitration clause is not susceptible of an inter- pretation that covers the asserted dispute.” AT&T Techs. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986). Thus, if the arbitration provision covers “all” or “any” dispute “arising out of” a transaction or relationship, a court should find the consumer’s claims arbitrable. However, the company should make certain that, where a consumer asserts state statutory claims, there are no special rules regarding whether those claims must be specifically accounted for in some way within the arbi- tration clause.
The Unconscionability Defense
Is the Agreement Unconscionable?
Finally, the company will need to be mind- ful of whether or not the consumer will be able to show that the arbitration provision is
worked the day shift, and male inspectors, who historically worked the night shift. The issue of “equal work” did not even appear to be disputed, as the Supreme Court’s opinion does not analyze the term at all, and thus it
With rapid legislative develop- ments on pay equity in nu- merous states, and with high visibility on the issue in many forums, pay equity litigation is likely to continue to occupy a prominent and important place in workplace legal issues.
appears that the work of all inspectors was assumed or conceded to be equivalent.
By contrast, recent filings by high-level, professional women reveal much more fact- intensive and individualized claims that focus on the specific nature of the plaintiff’s executive or managerial duties. Here, courts frequently conclude that, unless the plain- tiff’s duties were similar not just in the level of responsibility, but also in the nature of responsibility, the female plaintiff and the male comparators are not performing “equal work” for purposes of the Equal Pay Act.
Chiaramonte, discussed above, is a good example of a court’s efforts to undertake a detailed review of the exact duties performed by the high-ranking plaintiff, rather than to conclude that all employees at the same lev- el—whether the same experience level or the same organizational level—are sufficiently similar to be characterized as performing
unconscionable under the controlling state law. Unconscionability may take two forms: (1) procedural unconscionability, which refers to the circumstances surrounding the adop- tion of the agreement; and (2) substantive unconscionability, which refers to the fairness of the arbitration provision itself.
The question of procedural unconscionability generally focuses on whether the formation of the arbitration agreement was tainted by some form of oppression or unfairness. This analy- sis will generally mirror the analysis regarding whether an agreement to arbitrate was validly formed, but the company should be aware of state laws regarding contracts of adhesion.
With regard to substantive unconscionabil- ity, the company should pay careful attention to the terms of the arbitration provision. Here, the company will want to emphasize the posi- tive features of the arbitration clause. Indeed, other than the class action waiver, the arbi-
“equal work.” In Chiaramonte, the Southern District of New York concluded that various board-certified, long-experienced veterinar- ians could not properly be compared because they actually performed different functions— e.g., the plaintiff was an internist, while some of the purported comparators were special- ists, among other differences.
In another example of this kind of analysis, Schultz v. Dixie State Univ., the District of Utah held in May 2017 that an Equal Pay Act plain- tiff who held the title of vice president could not establish that she and male vice presi- dents performed “equal work,” because the plaintiff had insufficiently alleged their duties were the same. Indeed, the court noted the allegations demonstrated the plaintiff and her male comparators oversaw different depart- ments and managed different functions, but not that they performed closely related or “equal” functions.
The last year also has seen female plaintiffs working in high-ranking positions in profes- sional services firms filing cases alleging unequal pay based on gender, citing purport- edly higher-paid male comparators. Should courts conclude these plaintiffs work in dif- ferent departments, oversee different func- tional areas, or otherwise have unique job duties that are different in kind from those of male comparators, courts may well con- clude the plaintiffs have not met the “equal work” standard, even if the plaintiffs and their comparators hold the same title, have the same level of experience, or are peers in other organizational ways.
With rapid legislative developments on pay equity in numerous states, and with high visibility on the issue in many forums, pay equity litigation is likely to continue to occupy a prominent and important place in workplace legal issues.
tration clause may distinctly advantage the consumer by providing a low-cost means to quickly resolve his or her dispute with the company. In contrast, where the arbitration provision imposes draconian procedures upon the consumer, a court could hold the provision unconscionable and therefore unenforceable.
Conclusion
In sum, enforcing the arbitration provi- sion will require the moving party to cham- pion and defend the arbitration provision as (1) conspicuously located and presented in a manner that provided notice to the consumer of its existence, (2) broad enough to cover the claims at issue, and (3) sufficiently fair such that it cannot be found unconscionable. If successful, the company will be able to avoid protracted class action litigation and quickly resolve the individual consumer’s issues.
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