2d Circuit Revives Title VII Pay Discrimination Claim

In Lenzi v. Systemax, Inc., No. 18-979, 2019 WL 6646630 (2d Cir. Dec. 6, 2019), the court, inter alia, reinstated plaintiff’s claims – dismissed below by summary judgment – of pay discrimination, pregnancy discrimination, and retaliation claims under Title VII of the Civil Rights Act of 1964.

In sum, plaintiff alleged that defendants paid her less than they would have if she were a man, retaliated against her when she raised concerns about her disparate pay and possible Consumer Product Safety Act violations, and fired her because she was pregnant.

Here I will discuss the court’s consideration of the Title VII pay discrimination issue.

Notably, this decision clarifies that, in order to establish a prima facie pay discrimination claim under Title VII, a plaintiff need not first establish a violation under the Equal Pay Act – i.e., that she performed equal work but received unequal pay – but need only prove that her employer “discriminate[d] against [her] with respect to [her] compensation … because of [her] … sex.”

The court elaborated on this point, explaining (internal citations and quotation marks omitted; paragraphing altered):

To be sure, one way an employer might discriminate against an employee because of her sex is to pay her less than her male peers who perform equal work. In such circumstances, an employee may seek redress under the EPA or, if the circumstances admit “an inference of discrimination,” Title VII. However, it by no means follows that this is the only way in which an employer might achieve its discriminatory purpose. For example, an employer might hire[ ] a woman for a unique position in the company, but then pay her less than it would had she been male. If a Title VII plaintiff were first required to establish an EPA violation, she would be without redress under those circumstances, even if her employer flatly admitted that her salary would have been higher had she been male. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination. In other words, grafting the EPA’s equal-work standard onto Title VII would mean that a woman who is discriminatorily underpaid could obtain no relief—no matter how egregious the discrimination might be—unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Such a rule finds no support in the text of Title VII and would be inconsistent with Title VII’s broad remedial purpose, which counsels against interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate. … In short, Title VII does not require a plaintiff alleging pay discrimination to first establish an EPA violation—that is, that she received less pay for equal work. Rather, all Title VII requires a plaintiff to prove is that her employer “discriminate[d] against [her] with respect to [her] compensation … because of [her] … sex.” 42 U.S.C. § 2000e-2(a)(1). Thus, a claim for sex-based wage discrimination can be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not based on seniority, merit, quantity or quality of production, or any other factor other than sex.

Applying the law, the court held that plaintiff sufficiently demonstrated discriminatory intent, noting evidence that defendant “paid Markou below the market rate for her position while paying her male peers above market rate, along with [defendant’s CFO]’s pervasive disparagement of women”, which was sufficient to make out a prima facie case of discrimination.

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