Sex discrimination claims are reinstated against Fordham University

A business professor at Fordham University has prevailed at the Second Circuit and reinstated her equal pay claim. The Court of Appeals applies a recent decision holding that equal pay claims under Title VII are not held to the strict standards guiding the Equal Pay Act.

The case is Solomon v. Fordham University, a summary order issued on September 5. This case was dismissed under Rule 12(6)(6), which means the case never reached discovery before the trial court rejected the complaint for failure to state a claim. But the district court got a few things wrong, the Court of Appeals (Calabresi, Carney and Lee) says, including rejecting certain allegations as time-barred and holding that plaintiff did not identify adequate comparators in support of her pay discrimination claim.

First, the statute of limitations. For hostile work environment claims, courts will consider allegations of sexism that pre-date the 300-day statute of limitations under Title VII. (An EEOC charge in New York must be filed within 300 days of the discriminatory act). The theory, as endorsed by the Supreme Court, is that a hostile work does not always consist of discrete acts but comments and other incidents that take place over time and often extend more than 300 days. This is settled law ever since the Supreme Court decided National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). But even with the older acts thrown into the equation, the Second Circuit finds, plaintiff does not have a hostile work environment claim because "her allegations concern events occurring over the course of 19 years, involving different individuals and varying kinds of incidents."

The older acts of hostility, however, allow plaintiff to proceed with her other discrimination and retaliation claims. The case returns to the district court to reconsider those claims in light of the background evidence. While that evidence may not in itself support a claim for damages, it is still relevant background evidence for purposes of determining whether plaintiff has viable discrimination and retaliation claims. 

The equal pay claim also returns to the district court. Under the Equal Pay Act, plaintiffs must show their comparators had identical jobs as the plaintiff and that they were paid more money. But equal pay claims under Title VII do not require that high-level comparison. The Second Circuit so held in Lenzi v. Systemax, Inc., 944 F.3d 87 (2d Cir. 2019). Lenzi opens the door for more equal pay claims. Here is the Second Circuit's reasoning on this claim:

The district court erred in concluding that Solomon failed to identify similarly situated comparators, and thus did not sufficiently plead an EPA claim or a Title VII claim. As discussed above, she alleged that she and the tenured male professors were paid different wages, though they had the same job responsibilities, were subject to the same evaluation standards, and were in the same practice area (Management Systems).