Can employers avoid Equal Pay Act liability through productivity-based defenses? Hitesman v. University of Utah Explained

In Hitesman v. University of Utah, the Utah Court of Appeals addressed the challenging burden employers face when asserting affirmative defenses under the Equal Pay Act. The decision provides critical guidance on when productivity-based justifications can defeat wage discrimination claims.

Background and Facts

Misty Hitesman worked as a sponsored project officer at the University of Utah for nine years, analyzing and facilitating grant assignments and budgeting. Despite performing substantially the same work as her male colleagues W.E. and J.P., she was paid significantly less—earning $59,648 when she resigned, compared to W.E.’s $75,940 and J.P.’s $68,340. The University defended the pay disparities by citing higher transaction completion numbers for the male employees and complaints about Hitesman’s performance.

Key Legal Issues

The case centered on whether the University established valid affirmative defenses under 29 U.S.C. § 206(d)(1), specifically: (1) a system measuring earnings by quantity or quality of production, and (2) factors other than sex. The court examined whether these defenses were proven so clearly that no rational jury could find to the contrary—the standard required for summary judgment.

Court’s Analysis and Holding

The Court of Appeals reversed the district court’s grant of summary judgment. Regarding the productivity-based defense, the court found no evidence of objective standards or structured procedures for translating transaction numbers into wages. The University failed to show that productivity statistics were actually used in salary determinations or performance reviews. For the “catch-all” defense, the court noted that while the University’s explanations could justify the pay disparity, the evidence was not overwhelming enough to compel that conclusion as a matter of law.

Practice Implications

This decision underscores the high burden employers face in proving Equal Pay Act defenses at the summary judgment stage. Employers cannot rely on post-hoc justifications; they must demonstrate that legitimate business factors actually motivated the wage disparity with objective, documented systems. The ruling also clarifies that work remains “substantially equal” even when employees perform tasks with different frequency, focusing on job content rather than individual performance levels.