“Oh, they paid you less than market value? Yes, we love your novel equal pay legal theory. Tell us more!”


If only a federal appellate court had reacted that way when a female plaintiff claimed an equal pay violation because she and other females were paid less than the “local industry standard.” But, the Fourth Circuit Court of Appeals wasn’t buying the ‘back-of-the-envelope math’ the plaintiff was selling.

Allow me to explain.

The plaintiff worked for a shoe company making around $39,000. Eventually, she asked for a pay raise. The defendant rebuffed her but gave her a new title: Senior Photographer and PR Specialist.

Around the same time, the plaintiff’s manager emailed the finance department asking for raises for the plaintiff and other employees in the marketing department. In the email, the manager listed each employee’s current pay compared to what she termed a “local industry standard” for generic jobs that she decided roughly matched the different jobs in the marketing department. She made up the “local industry standard” pay from websites such as Glassdoor. And compared to her made-up standard, she argued that the three female workers in the marketing department —including the manager herself—were paid well below the “local industry standard.”

The defendant did not raise anyone’s salary.

Well, it just so happened that there was one employee in the department, the only man, who made close to the “local industry standard.” And won’t you know it, a co-worker “found” his paystub and shared it with the plaintiff.

Yada, yada, yada. We’ve got a Title VII wage discrimination lawsuit.

At the district court, the plaintiff argued that the defendant unlawfully paid her less than her male co-worker. But, their roles were too different for him to be a suitable comparator. And because the two did not perform similar jobs, the plaintiff could not rely on him as a comparator to show wage discrimination. So, the district court granted summary judgment to the defendant.

On appeal, the plaintiff changed her legal theory, arguing that the defendant categorically paid women less than men.

While a female plaintiff does not need one male comparator to show pay bias, she must still present evidence that reasonably creates an inference of an unlawfully discriminatory motive. However, some online research and a contrived “local industry standard” fall well below that standard.

Plus, no one in the department performed the same job as the male co-worker.

“The sum here is not more than its parts,” noted the appellate court. “What [the plaintiff] cannot show by comparing herself to one dissimilar male employee, she can’t show by comparing that same male co-worker to two other dissimilar employees either.”

An employee — any employee — cannot infer pay bias by comparing apples to oranges.

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