on money management. The court found that the jobs were substantially similar, primarily because they involved substantially equal responsibility based on their differently balanced cores of common tasks. Mulhall establishes that overlapping jobs need not have the same balance of content in order to be "substantially similar" under the EPA. Id.
The cases relied upon by defendants fail to convince the Court that defendants are entitled to summary judgment as a matter of law. Although plaintiff's job required some different skills than those of Alster and Panitch, the record does not establish beyond dispute that the degree of skill required by the jobs was significantly different. See Coe v. Cascade Wood Components, Inc., 1988 U.S. Dist. LEXIS 13122, 48 Fair Empl. Prac. Cas. (BNA) 664, 1988 WL 125893 (D. Or. 1988) (skills required may be different in substance but must be equal in degree).
On review of the entire record, defendants have failed to demonstrate an absence of dispute as to the degree of skill, effort and responsibility required by the jobs performed by Alster, Panitch and plaintiff. Nor have defendants directed the Court's attention to undisputed facts indicating that the three worked under different conditions. Summary judgment is therefore inappropriate.
Defendants' Affirmative Defenses
Once an EPA plaintiff makes out her prima facie case, the burden of persuasion shifts to the defendants to prove by a preponderance of the evidence one of the affirmative defenses permitted by the Equal Pay Act. Defendants' burden is a heavy one, far exceeding the burden of articulation born by a defendant to a Title VII action, as the burden of persuasion under Title VII remains always with the plaintiff. Compare Mulhall, 19 F.3d at 590-91 and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2754, 125 L. Ed. 2d 407 (1993). Indeed, defendants must prove that the factor of sex provided no basis for the wage differential. Mulhall, 19 F.3d at 590. Defendants argue that the differences between plaintiff's salary and those earned by Nider, Alster and Panitch were based on factors other than sex, the fourth rebuttal category presented by the statute. 29 U.S.C. § 206(d)(1).
Market Forces Defense
Defendants first claim that market forces drove the salaries paid to plaintiff and comparators. Defendants rely on Stanley v. University of S. Cal., 13 F.3d 1313, 1322 (9th Cir. 1994), holding that "unequal wages that reflect market conditions of supply and demand are not prohibited by the EPA." In evaluating this defense, the Court will bear in mind the Stanley court's clarification that "an employer may consider the marketplace value of the skills of a particular individual when determining his or her salary." Citing Homer v. Mary Institute, 623 F.2d at 709. It is not legitimate under the EPA to pay an equally qualified woman less than a man because of her inferior bargaining power in the market as a woman. See Ottaviani v. State Univ. of New York, 679 F. Supp. 288, 338 (S.D.N.Y. 1988), aff'd, 875 F.2d 365 (2d Cir. 1989), cert. denied, 493 U.S. 1021, 107 L. Ed. 2d 740, 110 S. Ct. 721 (1990). A court should not accept a "market forces" defense unless the employer can rationally explain the use of market information. See Chang v. University of Rhode Island, 606 F. Supp. 1161, 1229 (D.R.I. 1985). Previous salary is a legitimate consideration when determining the market value of an individual's skills. See Tornow v. University of N.C., 1991 U.S. Dist. LEXIS 20972, 57 Fair Empl. Prac. Cas. (BNA) 1313, 1315, 1991 WL 354883 (M.D.N.C. 1991), aff'd, 977 F.2d 574 (4th Cir. 1992).
Defendants contend that a "market forces" defense may include an employer's relative desire to hire a particular individual. They cite Ottaviani, 679 F. Supp. at 336-37, where the court referred to the employer's "strong desire to hire" a particular male employee as one legitimate factor explaining a wage differential between him and female employees. However, the market forces defense may not be used as a disguise for employment decisions based on a belief that women generally come more cheaply than men. Therefore, while an employer may in general vary salaries based on relative desire to hire a particular individual, this practice runs afoul of the EPA if that desire is motivated by the prospective employee's gender. If the employer offers a high salary to a young lawyer because it thinks this lawyer has great potential, in part because he is a man, this would violate the EPA. As the court in Moseley held, 1981 WL 307 at *11, an employer can pay more if necessary to get the man who is the best person for the job, but may not pay women less merely because the employer believes they are willing to work for less money.
In support of this defense, defendants assert the following undisputed facts: (1) before hiring plaintiff, defendant firm attempted to hire another female, but was not able to meet her salary demand (F. Lav. I at 48), (2) plaintiff's salary at the firm was a significant increase over her salary at her previous job, and (3) plaintiff accepted the salary the firm offered. Finally, defendants have submitted a New Jersey Law Journal article stating that large New Jersey law firms were limiting their raises to new classes of associates.
The undisputed facts now before the Court do not establish that defendants are entitled to judgment as a matter of law on their market forces defense. The fact that defendants were unwilling to pay another woman more than they paid plaintiff certainly does not show that they paid Nider, Alster and Panitch more because the market demanded more for their skills than for plaintiff's. Nor does plaintiff's previous salary explain the discrepancy, as defendants have not established beyond dispute that plaintiff's previous salary was unrelated to her status as a woman in the marketplace or that her previous salary accurately reflected the value of her skills in the marketplace.
Nor does plaintiff's acceptance of the job prove that defendants did not set her salary on the basis of gender. The case law specifically warns against granting a market forces defense based on the fact the an employer pays women less because they believe they will work for less, or because women have inferior bargaining power, as women, in the market place. Indeed, if plaintiff's acceptance of the lower-paying job were a defense, no woman would ever be able to establish an EPA claim with respect to a job she actually held.
Finally, the newspaper article offered by defendants is inadmissible hearsay. Even if admissible, the article does not rationally explain the effect of market forces on salary decisions at Stern, Lavinthal. Therefore, this article is irrelevant to this Court's decision.
Accordingly, the Court declines to find, on the undisputed facts, that defendants are entitled to judgment as a matter of law based on their market forces defense.
Non-Discriminatory Criteria: Background, Training and Experience
At oral argument, counsel for defendants argued that plaintiff was paid less than comparators because she required training by Frederic Lavinthal in order to perform her job. This contention is unsupported by the record. Counsel apparently relied upon Frederic Lavinthal's response at deposition to the question: "What were you really looking for in the person that was filling this position?" F. Lav. I at 49. Lavinthal stated that he was seeking "somebody who had some transactional background, who was capable of writing well, and who I could train to do the work or assist in doing the work that I do." Id. This statement does not address plaintiff's qualifications, but rather expresses that, before hiring plaintiff, Lavinthal entertained the possibility of hiring a person who required training. Furthermore, defendants' contention based on this statement is unsupported by any evidence indicating that plaintiff actually did require more training than associates who received higher salaries than she. Therefore, the Court finds that the record does not establish, beyond dispute, that plaintiff, as opposed to comparators, required significant training in order to perform her job duties.
The Court next considers the other arguments presented by defendants in support of their contention that the salary discrepancies were due to differences in background, training and experience of plaintiff and the comparators.
Defendants argue that Alster was hired at a higher rate than plaintiff because he was an experienced litigator, had experience as in-house counsel to a mortgage lender, a practice area that Stern, Lavinthal emphasizes, and that he was "quick, fast on his feet, got good results, and was a hard worker." F. Lav. I at 87:14-17. They also assert that Alster filled a particular need of the firm because he came in the wake of the departure of a litigation partner.
Defendants assert that they did not compare Alster to plaintiff when setting plaintiff's salary, and they do not compare the qualifications of the two in their brief. The fact that the two were not compared at the time of hire is not a defense to an EPA claim, as plaintiff need not prove intent to discriminate. See E.E.O.C., 865 F.2d at 1414, n.8.
Despite defendants' unwillingness to compare plaintiff and Alster, such comparison is required by the EPA inquiry. Plaintiff was admitted to the bar six months earlier than Alster. Alster has sworn to the following litigation experience:
[At my previous job], the focus of my practice. . . was the enforcement of mortgagee's rights, and primarily encompassed representing the company in foreclosure and bankruptcy matters.
By far the greatest portion of the time I spent in court on behalf of Rolls was on motion practice. My actual "trial experience" during the one year of my employment there consisted of two or three very short bench trials, none of which lasted longer than one day.