A New York district court magistrate judge conditionally certified a class of past and current entry-level female sales representatives of Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. under the Equal Pay Act. The court found that the named plaintiffs had made a sufficient showing that they and the potential opt-ins plaintiffs “together were victims of a common policy or plan that violated the law.”

Eleven named plaintiffs initially filed their lawsuit in 2012, and the plaintiffs’ second amended complaint survived a motion to dismiss in August, 2014.  At issue were individual, pattern and practice, and disparate impact gender discrimination claims for 1) pay discrimination in violation of Title VII of the Civil Rights Act; 2) unlawful failure to promote under Title VII; and 3) pregnancy discrimination under Title VII. The plaintiffs also challenged the defendants’ pay practices as unlawful under the Equal Pay Act, and brought separate claims for violations of the Family and Medical Leave Act, unlawful retaliation, and sexual harassment.

Although the second amended complaint sought Rule 23 certification of the Title VII claims as well as the collective claims under the Equal Pay Act, following discovery, the plaintiffs only initially sought conditional collective action certification under the Equal Pay Act. The Equal Pay Act, which prohibits sex-based wage discrimination between men and women who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions,[1] is codified as part of the Fair Labor Standards Act (FLSA), and permits opt-in collective actions as opposed to Rule 23 class certification.[2]

Following the Second Circuit’s two-step process for conditional certification in collective actions, the Barrett court noted that the plaintiffs need only make a “modest factual showing” that there were other plaintiffs who may be “similarly situated” to them to warrant issuance of a notice with respect to whether a violation of the FLSA has occurred. Only after full discovery does the court decide whether the plaintiffs who have opted in are in fact “similarly situated” to the named plaintiffs so that the case can continue as a collective action.

The court noted that the plaintiffs’ evidence included that the entry level sales representative position at issue was subject to uniform job descriptions, training and corporate standards, and that the company followed a single set of standards for initial base pay and annual and merit raises. The plaintiffs also presented a statistician who found “statistically significant” differences between the pay of male and female sales representatives. Each plaintiff likewise presented a list of between four and 71 male comparators respectively who had less or equal seniority to the plaintiffs but who were paid more than each plaintiff. According to the court, the evidence presented “reflects an apparent uniformity in the corporation’s treatment of personnel in the Sales Representative category… It similarly reflects the corporation’s assumption that the work done by these individuals is sufficiently comparable that their compensation is to be guided by the same criteria across the board, limited only by their geographic region and by a very narrow area of discretion on the part of their supervisors to increase their pay.”

The court rejected the defense attacks on the reliability of the plaintiffs’ expert statistician, as well as the defense argument that the plaintiffs “cherry picked” their comparators and ignored a significant number of male comparators who in fact earned less than plaintiffs. The court found that under the Equal Pay Act, the defendant will ultimately bear the burden of proving the reasons for any disparity in pay between comparably situated male and female comparators and that such attacks were premature in any event at the conditional certification stage. The court also noted that the defense arguments that pay rates were subject to varying skills sets and/or geographic locations were inconsistent with the company’s own documentation to the contrary.

At the conditional certification stage under the FLSA, courts do not resolve factual disputes or focus on whether a violation of the law did or did not occur. Rather, the court is focused on whether or not similarly situated plaintiffs exist to justify notice to potential opt-in plaintiffs. In this case, despite the breadth of the plaintiffs’ pending complaint, the plaintiffs narrowly focused on an entry level sales position that was subject to uniform compensation policies to support their successful bid for conditional certification.

Barrett et al. v. Forest Laboratories, Inc. et al., Case No. 1:12-cv-05224-RA-MHD (S.D. N.Y. Sept. 2, 2015).