TABLE OF AUTHORITIES................................................................... ii

STATEMENT OF INTEREST................................................................ 1

STATEMENT OF THE ISSUE............................................................... 1

STATEMENT OF THE CASE................................................................ 1

A. Statement of the Facts.................................................................... 1

B. District Court’s Decisions.............................................................. 3

ARGUMENT........................................................................................... 5

O’Reilly Successfully Established a Prima Facie Case of Wage Discrimination Under the EPA Because She Identified a Male Comparator Who Was Paid More for Performing Substantially Equal Work........................................................................................................ 5

A. The EPA requires a comparison of compensation for substantially equal work..................................................................................... 5

B. Although this Court has conflicting lines of precedent regarding the required prima facie showing under the EPA, the proper standard requires a plaintiff only to show that a single opposite-sex comparator was paid more for substantially equal work................. 7

CONCLUSION...................................................................................... 18

CERTIFICATE OF COMPLIANCE...................................................... 20

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page(s)

Cases

Byrd v. Ronayne,
61 F.3d 1026 (1st Cir. 1995)......................................... 15

Chance v. Rice Univ.,
984 F.2d 151 (5th Cir. 1993)......................................... 15

Corning Glass Works v. Brennan,
417 U.S. 188 (1974)............................................... passim

Drum v. Leeson Elec. Corp.,
565 F.3d 1071 (8th Cir. 2009)......................................... 6

EEOC v. Md. Ins. Admin.,
879 F.3d 114 (4th Cir. 2018)..................................... 9, 14

EEOC v. White & Son Enters.,
881 F.2d 1006 (11th Cir. 1989)............................... 12, 14

Euerle-Wehle v. United Parcel Serv., Inc.,
181 F.3d 898 (8th Cir. 1999)..................................... 8, 10

Fagen v. Iowa,
301 F. Supp. 2d 997 (S.D. Iowa 2004).................... 10, 11

Hein v. Or. Coll. of Educ.,
718 F.2d 910 (9th Cir. 1983)................................... 16, 17

Heisler v. Nationwide Mut. Ins. Co.,
931 F.3d 786 (8th Cir. 2019)....................................... 6, 9

Hennick v. Schwans Sales Enters., Inc.,
168 F. Supp. 2d 938 (N.D. Iowa 2001)............ 7, 8, 10, 11

Heymann v. Tetra Plastics Corp.,
640 F.2d 115 (8th Cir. 1981)........................... 7, 8, 17, 18

Hunt v. Neb. Pub. Power Dist.,
282 F.3d 1021 (8th Cir. 2002)....................................... 10

Hutchins v. Int’l Bhd. of Teamsters,
177 F.3d 1076 (8th Cir. 1999)................................ passim

Katz v. Sch. Dist. of Clayton,
557 F.2d 153 (8th Cir. 1977)........................................... 9

Melanson v. Rantoul,
536 F. Supp. 271 (D.R.I. 1982)..................................... 18

Orahood v. Bd. of Trs. of Univ. of Ark.,
645 F.2d 651 (8th Cir. 1981)......................................... 18

Simpson v. Merchants & Planters Bank,
441 F.3d 572 (8th Cir. 2006)......................................... 10

Sowell v. Alumina Ceramics, Inc.,
251 F.3d 678 (8th Cir. 2001).................................. passim

Stopka v. All. of Am. Insurers,
141 F.3d 681 (7th Cir. 1998)......................................... 15

United States v. Escobar,
970 F.3d 1022 (8th Cir. 2020)....................................... 10

Warf v. U.S. Dep’t of Veterans Affs.,
713 F.3d 874 (6th Cir. 2013)......................................... 15

Statutes

Equal Pay Act of 1963, 29 U.S.C. § 206(d)................. passim

.... 29 U.S.C. § 206(d)(1).......................................... 5, 11, 17

Fair Labor Standards Act of 1938, 29 U.S.C. §§ 203 et seq. 2

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.................................................... 7, 17, 18

Other Authorities

29 C.F.R. § 1620.13(b)(2).................................................. 16

Eighth Cir. R. 28A(j)........................................................... 2

EEOC Compliance Manual Vol. II, § 10-IV(B), at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination........................................ 14

EEOC Compliance Manual Vol. II, § 10-IV(E), at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination.................................. 13, 14

Fed. R. App. P. 29(a)........................................................... 1

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with administering and enforcing the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”). This case raises an important question about the elements of a plaintiff’s prima facie case under the EPA: specifically, whether a plaintiff must identify more than one comparator of the opposite sex earning more money for substantially equal work to make out a claim of wage discrimination. Because the EEOC has a strong enforcement interest in this issue, it offers its views to the Court pursuant to Federal Rule of Appellate Procedure 29(a).

STATEMENT OF THE ISSUE [1]

Did the district court err when it held that plaintiff Tamara O’Reilly failed to make out a prima facie case of wage discrimination, even though O’Reilly had identified a male employee earning more money for substantially equal work?

STATEMENT OF THE CASE

A. Statement of the Facts

Defendant Daugherty Systems, Inc. (“Daugherty”) is a software consulting company engaged in management consulting and custom software development. R. Doc. 98-2, at 1-2.[2] Plaintiff Tamara O’Reilly held a number of different positions while working at Daugherty between March 2014 and November 2017. R. Doc. 115, at 1; R. Doc. 115-50, at 49; R. Doc. 115-51, at 1. Daugherty rated O’Reilly’s performance as exceeding its expectations, and Daugherty ultimately promoted her to the position of Director, Client Partner. R. Doc. 115-46, at 11 (O’Reilly performance review); R. Doc. 115, at 1; R. Doc. 115-50, at 49; R. Doc. 115-51, at 1. During her employment, her annual base salary increased from $135,000 to $200,000. R. Doc. 115, at 9. Several months after Daugherty promoted O’Reilly to Director, Client Partner, the company hired a male comparator, Drew Davis, as a Director, Client Partner. R. Doc. 115, at 17; R. Doc. 115-50, at 93; R. Doc. 115-52, at 1. He received a starting annual base salary of $275,000. App. 16; R. Doc. 114, at 42; R. Doc. 115-53, at 8.

After leaving Daugherty for a position at another company, O’Reilly brought this suit as a collective action under the EPA and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 203 et seq., alleging, in relevant part, that Daugherty paid female consultants and support staff less than similarly situated male employees. R. Doc. 1, at 2; R. Doc. 140, at 1. The district court conditionally certified a class that ultimately consisted of twenty women. R. Doc. 50, at 5-6; R. Doc. 140, at 2. Daugherty moved to decertify the class on the grounds that O’Reilly and the other female Daugherty employees who opted into the class lacked the similarity necessary to proceed in a collective action. R. Doc. 97 at 2; R. Doc. 98.

B. District Court’s Decisions

In an order dated September 30, 2021, the district court granted Daugherty’s motion to decertify the class. The court found that even though “[p]laintiffs presented evidence perhaps supporting that women were paid less than comparable men,” Daugherty’s salary decisions were not made on a centralized basis or pursuant to a single, unlawful policy, and the putative class members presented individualized questions of liability that were not appropriate for class-wide disposition. R. Doc. 140 (Memorandum and Order on Decertification (“Decert. Mem.”)) at 8-24.

In a separate order issued the same day, the district court addressed Daugherty’s motion for summary judgment only as it applied to O’Reilly, the sole remaining plaintiff. App. 3-15; R. Doc. 141 (Memorandum and Order on Summary Judgment (“SJ Mem.”)). O’Reilly alleged that Daugherty paid Davis a higher salary for substantially equal work, and she contended that the existence of such a comparator was sufficient to establish her prima facie case of wage discrimination. R. Doc. 126, at 8-9, 23-24. Daugherty countered by pointing to six other men who, it claimed, performed substantially equal work to O’Reilly and were paid less.^{^[3]} R. Doc. 114, at 8-11; R. Doc. 127, at 5.

The district court noted a split in Eighth Circuit authority over the number of valid comparators required to make out a prima facie EPA claim, with one line of cases holding that a plaintiff may make out a prima facie case “if she shows that at least some males made more for equal work,” and a subsequent line holding that an EPA claim necessarily fails if the plaintiff “is paid the same as, or more than, at least some male comparators.” App. 12; R. Doc. 141 (SJ Mem.), at 10 (quoting Hennick v. Schwans Sales Enters., Inc., 168 F. Supp. 2d 938, 947-48 (N.D. Iowa 2001)). The court concluded that “district courts in this circuit have repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports that the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more.” App. 13; R. Doc 141 (SJ Mem.), at 11. Because “alleged comparators that either were paid less [] or did not perform equal work outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work,” the court found that O’Reilly “fail[ed] to establish a prima facie EPA claim.” App. 14; R. Doc 141 (SJ Mem.), at 12. Although Daugherty had also contended that any pay disparities were justified by a legitimate factor other than sex, the district court declined to address that argument. App. 15; R. Doc 141 (SJ Mem.), at 13.

ARGUMENT

O’Reilly Successfully Established a Prima Facie Case of Wage Discrimination Under the E PA Because She Identified a Male Comparator Who Was Paid More for Performing Substantially Equal Work.

A. The E PA requires a comparison of compensation for substantially equal work.

Under the EPA, an employer may not “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). The statute provides for four defenses: a pay differential is permissible if the employer can show it is due to “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Id.

As the Supreme Court has explained, “The [Equal Pay] Act’s basic structure and operation are … straightforward.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). “In order to make out a case under the Act,” a plaintiff “must show that an employer pays different wages to employees of opposite sexes” for equal work. Id.; see also Heisler v. Nationwide Mut. Ins. Co., 931 F.3d 786, 795 (8th Cir. 2019) (“To establish a claim of sex-based wage discrimination under the Equal Pay Act … a plaintiff must show by a preponderance of the evidence that (1) she was paid less than a male employed in the same establishment, (2) for equal work on jobs requiring equal skill, effort, and responsibility, (3) which were performed under similar working conditions.” (internal citations omitted)); Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1072 (8th Cir. 2009) (“In order to establish a prima-facie case under the EPA, an employee must prove an employer paid different wages to men and women performing equal work.”). Because the central question for EPA purposes is whether men and women are paid unequal wages for equal work based on their sex, only comparators performing substantially equal work are relevant to the analysis. Corning Glass Works, 417 U.S. at 195.^{^[4]} Once the plaintiff has made her prima facie showing, the burden shifts to the employer to prove one of the four statutory affirmative defenses. Id.

B. Although this Court has conflicting lines of precedent regarding the required prima facie showing under the E PA, the proper standard requires a plaintiff only to show that a single opposite-sex comparator was paid more for substantially equal work.

In determining the nature of the prima facie showing necessary to establish a claim of wage discrimination under the EPA, this Court has followed two somewhat contradictory paths. Initially, this Court held that a plaintiff stated a prima facie case of wage discrimination when she presented evidence that she was paid less than twelve male coworkers performing equal work, even though the defendant identified eight other male coworkers who earned the same salary. Hutchins v. Int’l Bhd. of Teamsters, 177 F.3d 1076, 1081 (8th Cir. 1999). In other words, this Court held that an EPA plaintiff could satisfy her prima facie burden by showing that she was paid less than at least some male comparators for equal work. Id.; see also Hennick, 168 F. Supp. 2d at 948 (characterizing Hutchins as establishing a “some males made more” standard for a prima facie case under the EPA). This Court noted that in Heymann v. Tetra Plastics Corp., 640 F.2d 115 (8th Cir. 1981), a Title VII sex discrimination case (rather than an EPA case), it had previously expressed concern about comparisons with “specifically chosen employee[s],” and warned that such comparisons “should be scrutinized closely to determine [their] usefulness.” Id. at 1081 (quoting Heymann, 640 F.2d at 122). Nevertheless, this Court discerned no error in the district court’s “finding that Hutchins established a prima facie case of pay discrimination.” Id. at 1081. Importantly, this Court did not interpret Heymann as bearing on the elements of a prima facie EPA claim. Id.

Subsequently, however, this Court held that a plaintiff failed to make out a prima facie EPA claim because “she was paid the same as, or more than, at least some male” comparators performing equal work. Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001); see also Euerle-Wehle v. United Parcel Serv., Inc., 181 F.3d 898, 901 (8th Cir. 1999) (holding that a plaintiff’s EPA claim necessarily failed at the prima facie stage when the evidence showed she “was paid a higher salary than sixteen of the thirty-four male” comparators); Hennick, 168 F. Supp. 2d at 950 (characterizing Sowell as establishing a “some males made the same or less” rule).

The Sowell line of cases, which the district court followed in concluding that O’Reilly failed to make out a prima facie EPA claim, applies an overly strict legal standard. See App. 13; R. Doc. 141 (SJ Mem.), at 11 (holding that the plaintiff did not establish a prima facie case because “the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more”). Instead, the proper standard requires a plaintiff to show only that she was paid less than a single comparator of the opposite sex for equal work. This interpretation is consistent with the EPA’s language and animating purpose, and accords with precedents from the Supreme Court and a number of other circuits (as well as the EEOC’s guidance). Thus, Hutchins, rather than Sowell, provides the proper prima facie standard for EPA claims.

Countering the “‘ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same,’” Congress enacted the EPA to enshrine “the principle of equal pay for equal work.” Corning Glass Works, 417 U.S. at 190, 195 (quoting S. Rep. No. 176, 88th Cong., 1st Sess., 1 (1963)). Under the statute, a plaintiff proves wage discrimination by showing that “an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” Id. at 195.

The statute’s focus on “employees of opposite sexes” does not require a showing of class-wide differences in payment. EEOC v. Md. Ins. Admin., 879 F.3d 114, 121 (4th Cir. 2018). This Court discussed the prima facie case under the EPA in terms of a comparison between two individual employees in some of its earliest cases interpreting the statute. See, e.g., Katz v. Sch. Dist. of Clayton, 557 F.2d 153, 156 (8th Cir. 1977) (discussing when “two employees are performing equal work” under the terms of the statute). It has continued to do so in more recent cases post-dating Sowell. See, e.g., Heisler, 931 F.3d at 795 (explaining that an EPA plaintiff must show “she was paid less than a male employed in the same establishment” for equal work); Simpson v. Merchants & Planters Bank, 441 F.3d 572, 574, 578-79 (8th Cir. 2006) (affirming jury verdict in favor of plaintiff, a bank employee who alleged she was paid less than an individual male comparator); Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002) (including, in a recitation of the prima facie elements, that a plaintiff must show “she was paid less than a male employed in the same establishment”). Indeed, in its order decertifying the collective class entered the same day as its opinion granting summary judgment, the district court in this case concluded that classwide disposition was inappropriate because each plaintiff would be expected to show “that she was paid less than a male comparator.” R. Doc. 140 (Decert. Mem.), at 21 (emphasis added).

Because Hutchins predated Sowell and Euerle-Wehle, and one panel cannot overrule the holding of a prior panel on its own, United States v. Escobar, 970 F.3d 1022, 1026 (8th Cir. 2020), Hutchins must control to the extent the holdings are at odds. But even if this Court could choose between the two options, interpreting the prima facie case to require a single comparator better accords with the EPA’s goal of ensuring equal pay for equal work. See Hennick, 168 F. Supp. 2d at 950 (stating that the approach is “better-reasoned and more consistent with Supreme Court precedent”); Fagen v. Iowa, 301 F. Supp. 2d 997, 1004 (S.D. Iowa 2004) (concluding that the approach “is the more appropriate in the EPA context”). If this Court were instead to embrace the “some males made the same or less” rule adopted in Sowell, employees would be unable to challenge certain clearly discriminatory pay practices. For example, if an employer paid ten women half of what it paid nine men for equal work, the women would be unable to challenge their pay if the employer paid even a single man the same amount as the women. See Hennick, 168 F. Supp. 2d at 950; Fagen, 301 F. Supp. 2d at 1004. Such an outcome would be fundamentally inconsistent with the statutory requirement that employers not “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which [they pay] wages to employees of the opposite sex … for equal work.” 29 U.S.C. § 206(d)(1).

The district court indicated that it did not have to reconcile any inconsistencies between Hutchins and Sowell because this case “is distinguishable from Hutchins.” App. 14; R. Doc. 141 (SJ Mem.), at 12. But the only difference the court identified between this case and Hutchins was that some of the potential comparators O’Reilly named in discovery responses earned less than she did, while in Hutchins, the defendant had apparently been the one to identify the potential comparators earning the same as the plaintiff. Id.; see Hutchins, 177 F.3d at 1081 (noting “undisputed evidence” that eight men were hired at the same starting salary as the plaintiff, but not specifying which party had produced that evidence). The court did not explain why that difference was germane to the analysis. It concluded that “not even the comparators O’Reilly identified can establish her prima facie case,” App. 14; R. Doc. 141 (SJ Mem.), at 12, but O’Reilly did identify at least one such comparator: Drew Davis, who performed substantially the same work and was paid more. App. 11, 14; R. Doc. 141 (SJ Mem.), at 9, 12. Thus, Hutchins remains directly relevant, and summary judgment would be possible only by rejecting its central holding in favor of Sowell. As explained above, however, Hutchins should control.

Importantly, nothing about the Hutchins approach would prevent employers from defending themselves against wage discrimination claims. Evidence of a single comparator earning more does not conclusively establish liability under the EPA — instead, it merely satisfies the plaintiff’s burden to present her prima facie case. The burden then shifts to the defendant to prove that any gender-based pay disparity resulted from a seniority system, a merit system, a production-based compensation system, or “any other factor other than sex.” 29 U.S.C. § 206(d)(1); see Corning Glass Works, 417 U.S. at 196-97. Evidence of other men earning the same or less than a female plaintiff would certainly be relevant to any such showing, and could establish the affirmative defense in appropriate cases. See, e.g., H utchins, 177 F.3d at 181 (holding that plaintiff had established her prima facie case by identifying relevant comparators, but concluding that defendant had met its burden of showing conclusively that salary differentials “were based on factors other than sex,” justifying summary judgment in its favor); EEOC v. White & Son Enters., 881 F.2d 1006, 1009 (11th Cir. 1989) (“Plaintiff need only show discrimination in pay against an employee vis-a-vis one employee of the opposite sex. If, however, other appropriate ‘comparators,’ i.e., employees doing substantially equal work, were wrongly excluded from the comparison by plaintiff, defendant must call them to the attention of the court.” (citation omitted)); EEOC Compliance Manual Vol. II, § 10-IV(E), at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination (“[I]f other women are paid the same as or more than males, this may indicate that a factor other than sex explains the complainant’s compensation.”).

The standard the district court applied — rejecting the plaintiff’s prima facie case if “the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more,” App. 13; R. Doc. 141 (SJ Mem.), at 11 — has practical shortcomings as well. As the Supreme Court recognized, the EPA’s “structure and operation are … straightforward.” Corning Glass Works, 417 U.S. at 195. A standard that ignores evidence of a male comparator who was paid more for equal work, and instead asks whether the number of men paid more than the plaintiff “significantly outnumbers” those paid less, adds unnecessary complexity and subjectivity to this straightforward task. Allowing a single comparator to establish the prima facie case accords far better with the “simple,” “equal work will be rewarded by equal wages” approach of the EPA. See Corning Glass Works, 417 U.S. at 195.

Based on these considerations, several other circuits have explicitly recognized that an EPA claimant need only show she was “paid less than one or more males” for equal work to establish a prima facie case of wage discrimination. Md. Ins. Admin., 879 F.3d at 121; see also id. at 121-22 (“An EPA plaintiff is not required to demonstrate that males, as a class, are paid higher wages than females, as a class, but only that there is discrimination in pay against an employee with respect to one employee of the opposite sex.”); White & Son Enters., 881 F.2d at 1009 (“Plaintiff need only show discrimination in pay against an employee vis-a-vis one employee of the opposite sex.”). This is also the approach the Commission has long advocated. See EEOC Compliance Manual Vol. II, § 10-IV(B), at https://www.eeoc.gov/laws/guidance/section-10-compensation-discrimination (explaining that a prima facie case under the EPA requires showing, inter alia, that “the complainant receives a lower wage than [that] paid to an employee of the opposite sex in the same establishment” (emphasis added)); id. § 10-IV(E) (“A prima facie EPA violation is established by showing that a male and a female receive unequal compensation for substantially equal jobs within the same establishment. A complainant cannot compare herself or himself to a hypothetical male or female; rather, the complainant must show that a specific employee of the opposite sex earned higher compensation for a substantially equal job.” (emphasis added)).

Although not addressing the issue directly, several other circuit courts have described the prima facie standard as requiring plaintiffs to identify a single comparator of the opposite sex who was paid more for similar work. See, e.g., Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir. 1995) (“An Equal Pay Act plaintiff must make a prima facie showing that the employer paid different wages to an employee of the opposite sex for substantially equal work.”); Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993) (characterizing required showing as “1. [plaintiff’s] employer is subject to the Act; 2. she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and 3. she was paid less than the employee of the opposite sex providing the basis of comparison.”); Warf v. U.S. Dep’t of Veterans Affs., 713 F.3d 874, 881 (6th Cir. 2013) (“To prove an employer has violated the Equal Pay Act, a plaintiff must show that the employer paid an employee of the opposite sex different wages for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” (citation omitted)); Stopka v. All. of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998) (prima facie case requires showing that “(1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort and responsibilities, and (3) the work was performed under similar working conditions.”). Similarly, the regulations addressing application of the EPA contemplate the use of a single comparator to establish a prima facie case under the statute. See 29 C.F.R. § 1620.13(b)(2) (“[W]here an employee of one sex is hired or assigned to a particular job to replace an employee of the opposite sex but receives a lower rate of pay than the person replaced, a prima facie violation of the EPA exists.”).

Alone among the circuits, the Ninth Circuit has held, in the context of “professional setting[s]” like a university, that the proper inquiry is instead “whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work.” Hein v. Or. Coll. of Educ., 718 F.2d 910, 916-17 (9th Cir. 1983). This outlier standard, which neither the parties nor the district court mentioned, should not govern for several reasons.

First, the Hein court provided no meaningful basis for applying a different standard in “professional setting[s].” Instead, the court merely asserted that such settings are somehow different because “wage variations may stem from a multitude of factors that do not implicate sex discrimination.” Id. at 916. In making this point, however, the court emphasized the importance of identifying a comparator who both performed substantially equal work and was “similarly situated with respect to any other factors, such as seniority, that affect the wage scale.” Id. But because unequal wages due to a seniority system is the first affirmative defense mentioned in the statute, see 29 U.S.C. § 206(d)(1), it appears that the court was conflating the necessary prima facie showing under the EPA with the elements of a potential defense.

Second, Hein’s reliance on the EPA’s use of “employees” in the plural as a rationale for its rule also fails. That interpretation of the EPA ignores the fact that the statutory language uses “employees” in the plural to describe both the victims and the comparators. See 29 U.S.C. § 206(d) (forbidding employers to “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex ….” (emphases added)). Read as the Hein court suggests, § 206(d) would thus appear to be a class-action provision, requiring multiple victims of wage discrimination as well as multiple comparators to establish a claim. But this is an implication even Hein itself did not contemplate. Indeed, we are aware of no circuit court decision rejecting an EPA suit merely because it was filed by an individual employee rather than a class. It is thus unsurprising that the Hein court had no precedential support for its “average of all comparators” approach, which it appears to have borrowed from a Title VII case from this Court^{^[5]} and a district court case discussing damages after liability had already been established.^{^[6]} No other circuit has adopted Hein’s test in a published decision. This Court should not do so here.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be vacated and the case remanded for further proceedings.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(d) and 32(a)(7)(B). This brief contains 4,419 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 365 word processing program, with 14-point proportionally spaced type for text and footnotes. Pursuant to Eighth Circuit Local Rule 28A(h)(2), the ECF submission was scanned for viruses with Windows Defender, most recently on February 3, 2022. According to the program, this submission is free of viruses.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov

Dated: February 3, 2022

[1] We take no position with respect to any other issue presented in this appeal.

[2] Pursuant to Eighth Circuit Local Rule 28A(j), citations to the district court record take the form “R. Doc. [district court entry #], at [page #].” Citations to the Plaintiff-Appellant’s Addendum take the form “App. [page #].”

[3] Daugherty also argued that another five men who were paid more than O’Reilly did not perform equal work. R. Doc. 114, at 13-17; R. Doc. 127, at 5-9.

[4] Given the Supreme Court’s focus in Corning Glass Works on comparators who perform substantially equal work, it is unclear why the district court here chose to include the males performing different work in its analysis to arrive at the 10-to-1 ratio of those paid less than plaintiff to those paid more that it found determinative. See App. 13; R. Doc. 141 (SJ Mem.), at 11. Based on Corning Glass Works, the court should have focused exclusively on employees who performed substantially equal work (here, six comparators).

[5] In support of this approach, Hein cited this Court’s Heymann decision, 640 F.2d at 120-22. As noted above at pages 7-8, however, Heymann involved a Title VII sex discrimination claim based on wage differential; this Court did not purport to interpret the prima facie requirements for an EPA claim in arriving at its decision. And as the subsequent conflict between Hutchins and Sowell indicates, this Court has not interpreted Heymann as bearing on the elements of a prima facie EPA claim. See, e.g., Orahood v. Bd. of Trs. of Univ. of Ark., 645 F.2d 651, 654-55 (8th Cir. 1981) (addressing claims under the EPA and Title VII and citing Heymann with respect to the Title VII claim but not the EPA claim); Hutchins, 177 F.3d at 1081 (noting Heymann’s concern about comparisons with “specifically chosen employee[s]” but nevertheless concluding that the plaintiff had established her prima facie case of wage discrimination under the EPA).

[6] See Melanson v. Rantoul, 536 F. Supp. 271, 291 (D.R.I. 1982).