Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PAY—E.D. Ark.: Comparator being paid ‘red circle rate’ defeats equal pay claim alleging pay disparity was discriminatory, (Jul 18, 2025)

By Robert Margolis, J.D.

Court grants summary judgment to employer, finding that male comparator was paid at higher rate than plaintiff due to policy that reassigned employees would not suffer reduction in pay.

Finding that a male comparator to a former Arkansas Department of Human Services employee was paid at a higher rate than her for similar work because he had been reassigned from a higher-paying position to a position comparable to Wilson pursuant to a Department policy that reassigned workers would not suffer a reduction in pay, a federal district court in Arkansas granted the employer summary judgment against her Equal Pay Act and Title VII sex discrimination claims. The court held that the comparator was paid a “red circle rate,” defined in Federal regulations as an “unusual, higher than normal, wage rate[] … maintained for reasons unrelated to sex,” 29 C.F.R. § 1620.26(a), thus providing a dispositive affirmative defense to the employee’s claims (Wilson v. Arkansas Department of Human Services, No. 4:22-cv-00775-LPR (E.D. Ark. July 16, 2025)).

The employee was hired by the Department in June 2015 as a JDC Monitor in its Division of Youth Services, in which she ultimately was paid at the “GS-6” paygrade. When she was reassigned to another unit in the Division of Youth Services in 2019, her new position also was classified at the “GS-6” paygrade. She remained in that position until she resigned in April 2022.

Five months before resigning, in December 2021, she filed a charge of employment discrimination with the EEOC, alleging race and sex discrimination in violation of the Equal Pay Act and Title VII. She specifically named two male employees as relevant comparators. After receiving her right to sue letter she filed the instant lawsuit in August 2022, alleging violations of the Equal Pay Act and Title VII sex discrimination.

Equal Pay Act. In the Eighth Circuit, sex discrimination claims relying solely on unequal pay for equal work are governed by the same standards as the Equal Pay Act, no matter which statute the claims assert was violated. The court therefore addressed both of the employee’s claims simultaneously under an Equal Pay Act analysis.

An Equal Pay Act prima facie case requires a showing that the employer paid male workers more than the female worker for “equal work in jobs that required equal skill, effort, and responsibility and work performed under similar conditions.” Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). The work need not be identical, and several factors are considered to determine if the male and female co-workers in fact performed work that was “substantially equal.”

If the employee meets her prima facie case, the burden shifts to the employer to prove one of the Equal Pay Act affirmative defenses, which shield employers from liability when the pay disparity is attributable to (1) a seniority system, (2) a merit system, (3) a system measuring earnings by quantity or quality of work, or (4) “a differential based on any other factor other than sex ….” 29 U.S.C. § 206(d)(1). To prevail the employer must prove one of these defenses as a matter of law, such that no reasonable juror could conclude otherwise.

The employee identified two male comparators. The court found that neither provided support for her claims.

“Red circle rate”. The first comparator was reassigned from a job with a higher paygrade to a position that involved what the court deemed to be “substantially equal work” to the employee. However, when he was reassigned, as part of a Department-wide reorganization, a Department policy that no employee moved to a position with a lower paygrade due to the reorganization would receive less pay. As a result, the male comparator retained the higher rate of pay even after being reassigned to perform similar work to the employee.

The employer asserted that the resulting pay disparity between the employee and the male comparator was permissible because the male comparator was paid a “red circle rate,” defined in Federal regulations as an “unusual, higher than normal, wage rate[] … maintained for reasons unrelated to sex.” 29 C.F.R. § 1620.26(a). Under Eighth Circuit law, a red circle rate can constitute a “factor other than sex” sufficient to establish the fourth of the above-listed affirmative defenses under the Equal Pay Act. Because the court found that the male comparator’s pay fits “neatly within the definition of a red circle rate,” because it resulted from the above-described policy for reassigned workers, it granted summary judgment to the employer as to this comparator.

Time-barred. The employee’s claims as to the second comparator were time-barred, the court held, because the period this comparator and the employee were receiving disparate pay ended in August 2019, and she did not file suit until 2022. Thus, the Equal Pay Act’s two-year statute of limitations barred her claim. Similarly, the 180-day time limit for filing an EEOC charge barred the employee’s sex discrimination claim, because she did not file her EEOC charge until December 2021.

The case is No. 4:22-cv-00775-LPR.

Judge: Rudofsky, L.

Attorneys: Lakeysia Wilson, pro se. James Christopher McNeal, Arkansas Department of Human Services, for Arkansas Department of Human Services.

Companies: Arkansas Department of Human Services

Cases: Discrimination PayDiscrimination SexDiscrimination PublicEmployees ArkansasNews