Stopped at the Starting Gate : The Overuse of Summary Judgment in Equal Pay Cases

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions — both published and unpublished — that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases — meaning that only about one-third of equal pay claims get past the dispositive motion “starting gate.” In many cases, judges improperly granted summary judgment when material factual disputes existed about the prima facie standard of “equal work” and the credibility of the employer's defenses. In other cases, the very structure of the EPA — especially courts' overly strict interpretation of “equal work” and liberal application of the “factor other than sex” defense — caused it to be an ineffective remedy for modern pay discrimination