By: Christopher Kelleher, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: The Equal Employment Opportunity Commission (“EEOC”) has issued a report that should have high tech employers on high alert. According to the EEOC’s findings, analysis, and enforcement information, there are barriers to equal employment for high tech jobs, which the Agency intends to address through heightened enforcement efforts. It is important for all employers – not just high tech companies – to understand the EEOC’s report and be mindful of the agency’s strategic position it signals to avoid becoming the target of the EEOC’s enforcement efforts.

On September 11, 2024, the EEOC issued a report entitled High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector 2014-2022, which analyzes “demographic disparities for workers in 56 science, technology, engineering, and mathematics (STEM) occupations and the industries employing them.” In addition to providing an assessment of the current state of diversity in these fields, the report also discusses the most common discrimination charges filed by high tech sector workers with the EEOC.

The report follows on the EEOC’s Strategic Enforcement Plan (“SEP”) for fiscal years 2024-2028, which stated, in part, that “[t]he continued underrepresentation of women and workers of color in certain industries and sectors (for example, construction and manufacturing, high tech, STEM, and finance, among others), are also areas of particular concern, especially in industries that benefit from substantial federal investment.” (We’ve written previously about the proposed and final SEP.)

EEOC Findings of Underrepresentation of Certain Workers in High Tech Jobs

The report lists numerous findings that show, according to the EEOC, that the underrepresentation of Black, Hispanic, female, and older workers in the high-tech industry is due to “discriminatory barriers,” which the EEOC intends to address by proactively investigating charges of discrimination and pursuing litigation. The EEOC also plans to provide technical assistance and engage in extensive education and outreach efforts aimed at getting employers to comply with laws enforced by the EEOC.

The EEOC’s specific findings include:

  • Female, Black, and Hispanic workers remained substantially underrepresented in the high tech workforce and sector. According to the EEOC, between 2005 and 2022 there was very little change in the representation of Black workers and virtually no change in the representation of female workers occurred in the high tech workforce.
  • Black, Hispanic and Asian workers were purportedly underrepresented in managerial positions compared to their participation in the high tech workforce overall.
  • While women are nearly half of the total U.S. workforce, the EEOC reports that they were just 22.6% of the high tech workforce in all industries, and only 4% of the high tech workforce in the high tech sector.
  • The EEOC suggests that the high tech workforce is generally younger than the total U.S. workforce; 40.8% of the high tech workforce are ages 25 to 39, but only 33.1% of the overall workforce. Workers over age 40 in the high tech workforce reportedly lost ground between 2014 and 2022, declining from 55.9% to 52.1%.

EEOC Charge Filings in the High Tech Sector

The report provides charge filing information from 2022 (the most recent year for which the EEOC has reported data). The data show that the four most common types of charges filed in the high tech sector are: (i) retaliation; (ii) disability discrimination; (iii) race discrimination; and (iv) sex discrimination. Further, age, pay, and genetic information discrimination charges are more prevalent in the high-tech sector than in other sectors, with age discrimination charges representing the greatest difference in filings as compared to other sectors. Employers are likely to see surge in enforcement action by the EEOC in these areas, particularly with respect to Black, Hispanic, female, and older workers.

Implications for Employers

Employers in the high tech sector and with high tech employees must remain on high alert when it comes to the EEOC. The EEOC announced in the SEP that it intended to focus its enforcement efforts on this sector, and this report demonstrates that the EEOC is doing just that. As such, employers in the high tech industry and with high tech employees should be familiar with this report, and the EEOC’s promise to pursue large scale enforcement efforts in this space.  Employers in all industries should also mark the take-away that the EEOC continues its focus on systemic hiring and recruiting enforcement in a wide variety of sectors.

If you have questions about the information contained in the EEOC’s report, or would like guidance on how to respond to any threatened or pending litigation, contact your Seyfarth attorney or the authors of this post.

Seyfarth Synopsis: EEOC Commissioner Keith Sonderling, a Republican who first joined the EEOC in 2020, has announced his departure from the Commission in August 2024. Sonderling’s tenure was marked by his significant contributions to discussions on artificial intelligence in employment, establishing him as a leading authority on the subject. His departure leaves the EEOC with a 3-1 Democratic majority, and so it does not alter the Commission’s current political balance.

EEOC Commissioner Keith Sonderling has announced publicly that he will be departing the EEOC in August and rejoining the private sector. Sonderling’s departure will leave the EEOC with a 3-1 Democratic majority, with Commissioner Andrea Lucas being the lone Republican on the Commission.

While Sonderling’s term on the Commission expired on July 1, Title VII allows him to remain on the Commission for an additional 60 days and also allows a commissioner to hold over for even longer periods if the President nominates a replacement. However, given the current dynamics in Washington, DC, we are unlikely to see any nominations to the EEOC, let alone fast confirmation action by the Senate, for the remainder of the year.

During his tenure as an EEOC Commissioner, Sonderling became one of the leading voices regarding the use of artificial intelligence in employment. His early efforts in this area, in 2021, marked the first time an EEOC Commissioner engaged in-depth regarding issues relating to the use of AI in the workforce, and since then Sonderling has been a prominent and authoritative voice discussing both the potential benefits of AI, its potential risks, and the applicability of existing laws to the use of AI. Sonderling’s frequent engagement with global regulators has furthermore cemented him as a leading authority on these issues, and he has continued to travel around the world, lending his perspective as a US policymaker and speaking about both the benefits and potential harms associated with the use of AI in the workplace.

Sonderling’s departure from the EEOC does not signal a shift in the current political balance of power at the EEOC, since the EEOC has had a 3-2 Democratic majority since the confirmation of Commissioner Kalpana Kotagal in the summer of 2023. The Democratic majority has not been shy about exercising its prerogatives, and EEOC Chair Charlotte Burrows has moved through multiple initiatives via 3-2 votes over the Republican Commissioners’ objectives. Notable recent EEOC actions approved over Republican objections include the approval of the long-pending Enforcement Guidance on Harassment in the Workplace, the EEOC’s regulations relating to the Pregnant Workers’ Fairness Act (PWFA), the EEOC’s Strategic Plan and Strategic Enforcement Plan, the EEOC’s proposed regulatory agenda, and proposed inter-agency agreements with the Department of Labor and the National Labor Relations Board. On the AI front, both Sonderling and Lucas voted to disapprove the EEOC’s amicus brief in the Mobley v Workday class action, in which the EEOC voiced its support for novel theories of direct liability for AI vendors facing claims under the laws the EEOC enforces.

Sonderling’s departure leaves Commissioner Andrea Lucas the sole dissenting Republican vote on the EEOC. However, throughout her term on the EEOC, Commissioner Lucas has crossed the political aisle multiple times, voting with the Democratic majority to approve Commission actions over the objection of her Republican colleagues. In contrast, Commissioner Sonderling has never voted with the recent Democratic majority to approve a Commission action over Commissioner Lucas’ dissent.

Upon joining the Commission in 2020, Sonderling served as the EEOC’s Vice Chair, a position he held through January 2021. Before joining the EEOC, he served as the Acting and Deputy Administrator of the Wage and Hour Division at the U.S. Department of Labor. Before entering federal service in 2017, Sonderling was a management-side labor and employment lawyer in Florida.

Implications for Employers

Private-sector employers should remember that the majority of the EEOC’s litigation activity is approved on a bipartisan basis, or without formal votes by the Commission. And while Commissioner Sonderling’s departure from the EEOC means that one of the EEOC’s most prominent voices on AI and technology issues is leaving, the EEOC’s enforcement priorities and other activities in this space will continue.

For more information about the EEOC, its composition and litigation activity, please see Seyfarth’s 2024 EEOC Desk Reference, or contact your Seyfarth attorney or the authors of this post.

By: Matthew J. Gagnon

Seyfarth Synopsis: Government agencies and private plaintiffs’ counsel alike send a clear message: employers must take pay equity seriously. One way employers can address this message is by considering periodic audits of their pay practices and/or investigations of any unexplainable pay gaps or irregularities. Employers are often concerned about how those audits and investigations could be used against them if an employee were to bring an equal pay lawsuit in court. Several recent decisions have clarified the extent to which audit and investigation files can be kept privileged, and the uses that can be made of them in litigation by plaintiffs and employers.

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This is the fourth in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth’s yearly publication, Developments in Equal Pay Litigation, 2024 Update. The previous posts can be found here, here, and here.

Employers often learn about their employees’ equal pay complaints well before a lawsuit is filed in court. Employees frequently bring their concerns to company personnel first and only proceed to litigation if they feel those concerns were inadequately addressed. Depending on the circumstances, some employers may choose to investigate such claims or audit their pay practices as a result.

Many times, an employer’s investigation will reveal no evidence of unlawful pay disparities. If the employee rejects that conclusion and takes their claim to court, one issue that frequently arises in subsequent litigation is the discoverability of the employer’s investigation files. Employers that conducted their investigations under the cover of attorney-client privilege usually withhold some or all of their investigation files from production. But even in those cases, employees will sometimes argue that an employer waived privilege by putting the investigation at issue in litigation. These issues can ripen into contentious and high-stakes discovery disputes.

Recent Cases Addressing Privilege And Waiver Of Privilege Over Equal Pay Audits And Investigations

One lesson of these recent cases is that maintaining privilege over investigation files is often as much a question of how those files will be used in litigation as it is a matter of how the investigation itself was conducted. For example, in EEOC v. George Washington University, 342 F.R.D. 161 (D.D.C. 2022), the EEOC alleged that a woman Executive Assistant to the employer’s former Athletic Director was paid less than a male “Special Assistant” for the same work. She filed an internal grievance with the employer’s EEO office and a charge with the EEOC. The employer initiated an internal investigation to review the matter, which was initially conducted by non-lawyer staff in the EEO office. The investigation was later handed over to a law firm, which then issued a Confidential Informal Grievance Report. In discovery, the employer withheld all documents, except the grievance itself, as protected by attorney-client privilege and the work product doctrine.

The court held that those files were privileged because at least one primary purpose of the employer’s internal investigation was to obtain legal advice. Moreover, although the person initially conducting the investigation was not a lawyer, that person had contacted the employer’s General Counsel’s office for guidance at the outset and throughout the investigation. That was enough to keep those documents privileged.

So far, so good. However, the EEOC also argued that the employer’s assertion of a good faith defense put the employer’s subjective intentions at issue, which waived privilege over the investigation files. To save its privilege claim, the employer disclaimed any intent to rely on the internal investigation to support its defense. The court agreed that this was sufficient to preserve the privilege, holding that “a party that has interposed a good faith defense but disclaimed reliance on privileged or protected materials—such as those created in connection with an internal investigation—does not waive protection over those materials.” Id. at 187.

However, in another case, Goulet v. University of Mississippi, No. 3:22-cv-89-NBB-JMV, 2023 WL 2603939 (N.D. Miss. Mar. 22, 2023), a court ordered that large swaths of an employer’s investigation files should be turned over to the plaintiff. In that case, the employer had relied on its investigation report in its formal response to plaintiff’s charge of discrimination filed with the EEOC. Among other things, the employer had disclosed what it learned from interviewing plaintiff as part of the investigation, as well as other facts learned during the course of the investigation. The court held that such disclosures waived privilege over all but 10 pages of the employer’s 64-page investigative report, “for the reason that the information discussed in that material has already been disclosed by the University and its counsel to third parties—or in light of what has been disclosed, fairness would dictate the balance should be as well.” Id. at *4.

In yet another case, Benson v. City of Lincoln, 343 F.R.D. 595 (D. Neb. 2023), the court drew an even finer distinction. In that case, the employer hired an outside attorney to conduct an investigation of a firefighter’s sex-based discrimination complaints. The attorney investigating the incident interviewed plaintiff, the other firefighter accused of misconduct, and several other firefighters who were at the scene of the incident; her report was marked as attorney-client privileged and attorney work product. Although the employer produced the investigation report itself, it withheld the attorney’s other communications, documents, and recordings in her investigative file as privileged. Plaintiff argued that those privileges had been waived because the employer intended to use the report to refute plaintiff’s case in litigation.

The court held that the privilege had not been waived because the employer sought to use the investigation files only to support a denial; it was not intending to use it to prove an affirmative defense. As close followers of equal pay litigation know, an employer’s burden of proof is one of the fundamental differences between an equal pay claim brought under Title VII versus one brought under the Equal Pay Act. According to the court, the employer intended to use the report as evidence of a legitimate, non-discriminatory reason for plaintiff’s termination under the McDonnell Douglas burden-shifting framework applicable to plaintiff’s Title VII claim. Under that framework, “an employer is only required to articulate or produce a legitimate reason for its actions, but the employer does not bear a burden to prove or persuade, only to make a minimal evidentiary showing.” Id. at 612. This is in contrast to an employer’s obligation under the EPA, which many courts have held puts the burden of persuasion on the employer to establish its affirmative defense. Or, to put it in more practical terms, the court held that: “the fact that an attorney investigates a claim and reports to a corporate client does not waive privilege where ‘no actual defense of reliance on the attorney’s recommendations or findings is made as a basis of the defense against the claim.’” Id. at 613 (quoting Stockton v. HouseCalls Home Health Servs., Inc., No. 06-cv-357-GKF-PJC, 2007 WL 9782747, at *4 (N.D. Okla. June 15, 2007)).

Implications For Employers

Employers should be aware that the law of privilege and waiver of privilege is complex and may be different in different federal circuits. The above three cases merely show how individual courts handled the issue in three discrete situations with their own unique set of facts.  Although these cases were not overtly hostile to the employer’s position, they should serve as a warning to employers that privilege issues must be considered carefully before undertaking an equal pay audit or investigation.

It is often the case that employers find themselves wanting to use aspects of their internal investigation to defend some aspect of an equal pay claim. Such documents can show, among other things, that the employer was diligent in responding to a plaintiff’s claims of discrimination, or that those claims are simply unfounded. If they have taken the trouble to ensure privilege over their audits and investigations, they should understand that their intention to use those documents in defense of their claims could cause them to lose the privilege they so rigorously protected. Employers will want to keep these issues in mind as they consider why they are conducting the internal investigation in the first place, or how they might want to use what they find in later litigation. They can then plan their audits or investigations accordingly.

These and other trends impacting equal pay litigation are discussed in much greater detail in Seyfarth Shaw’s yearly report, Developments in Equal Pay Litigation, 2024 Update. We highly recommend that report to any employer facing equal pay litigation, or to those who just want to know more about it so they can avoid such lawsuits in the future or keep abreast of changes in the law. We look forward to continuing to share our analysis of these issues.

Authors: Christopher Kelleher and Andrew Scroggins

Seyfarth Synopsis: The Equal Employment Opportunity Commission (“EEOC”) has issued guidance tailored to the construction industry regarding compliance with anti-harassment laws. This lines up with our prediction in early 2024 that the EEOC had put the construction industry squarely in its sights. The guidance is important for construction-industry leaders and employers to understand to prevent and remedy workplace harassment, and to avoid potential harassment liability.

On June 18, 2024, the EEOC issued its Promising Practices for Preventing Harassment in the Construction Industry. This guidance provides key recommendations that construction-industry leaders and employers should consider implementing to prevent and address harassment in the workplace, and avoid being the target of the EEOC’s enforcement efforts. The guidance is intended to supplement the EEOC’s Strategic Enforcement Plan (“SEP”) for fiscal years 2024-2028, which provides direction on the EEOC’s current objectives, principles, and enforcement efforts – among them, increasing diversity in the construction industry and remedying harassment. (We’ve written previously about the proposed and final SEP.)

The guidance emphasizes several core principles to prevent and address harassment in the construction industry, including a committed and engaged leadership, consistent and demonstrated accountability, strong and comprehensive anti-harassment policies, trusted and accessible complaint procedures, and regular, interactive training tailored to the appropriate audience. In support of these principles, the guidance makes several overarching recommendations to help construction-industry employers remain in compliance with federal laws, and off the EEOC’s enforcement radar.

1. Leadership and Accountability

The EEOC is looking for leaders who are vocal about non-harassment. To that end, the Agency recommends that worksite leaders—project owners, general contractors, crew leaders, and union stewards—clearly, frequently, and unequivocally message and demonstrate that harassment is prohibited. Since there are often multiple entities and types of workers on a jobsite, the EEOC advises that project leaders and general contractors focus on preventing harassment against all workers on the site, regardless of whether or not those workers are covered by anti-discrimination laws. The EEOC also recommends that general contractors assist smaller subcontractors and staffing agencies with their legal obligations under federal anti-discrimination laws by referring them to the EEOC’s Small Business Resource Center.  

The EEOC also recommends that project owners provide or coordinate anti-harassment training, monitor the workforce for anti-harassment compliance, require that contract bids include a plan to prevent and address workplace harassment, and seek feedback from workers about anti-harassment efforts and whether harassment may be occurring.

2. Comprehensive and Clear Harassment Policies

The EEOC also expects construction industry employers to maintain and provide to employees a clear and comprehensive anti-harassment policy. (This expectation is true no matter the industry of the employer.) The policy should provide a description of who is covered under the policy, what conduct is prohibited, and complaint and reporting procedures. The policy should also indicate the employer’s commitment to conduct a prompt and thorough investigation of any reported harassment, and to keep any reports of workplace harassment confidential. Anti-harassment policies should be regularly updated, understandable to all employees, and posted in easy-to-find places, such as in the breakroom, or near the timeclock.

3. Effective and Accessible Harassment Complaint System

The EEOC reiterated the importance of an effective harassment complaint system, with points specific to the construction industry. in particular, in light of the often  complex overlap of multiple employers and entities engaged in construction projects, the EEOC recommends that onsite employers and leaders work together to provide a “no wrong door” environment to workers. The harassment complaint system should be easy to understand, including in languages commonly used by workers, and should include both formal and informal methods of reporting harassment, among other measures.

4. Effective Harassment Training

Finally, the EEOC emphasized the importance of regular, interactive, and comprehensive training of all workers on a construction site. According to the EEOC, harassment prevention training should be clear, easy to understand, and offered in languages commonly used by onsite workers.  It should also be tailored to the specific workforce and work environment. The EEOC recommends interactive trainings, but given the dynamic nature of construction workforces, alternative options include providing training through an interactive module accessible via mobile phone, or watching a series of short video clips, followed by a guided discussion about the clips.

Anti-harassment training should include a description of prohibited harassment, with examples specific to the construction industry, and workers should be provided with the complaint procedure, and encouraged to report any harassment they observe.

Implications for Employers

Employers in the construction industry must remain on high alert when it comes to the EEOC. The EEOC announced in the SEP that it intended to focus its enforcement efforts on the industry, and less than a year into the SEP it has backed up its words with complaints filed in federal court and guidance pointed straight at the industry.

No anti-harassment program can prevent all claims. However, adopting the EEOC’s recommendations for the construction industry may help to reduce that number while also bolstering an employer’s defense if a charge is filed. Because construction worksites often include groups of workers employed by multiple entities, the EEOC stresses the importance of a committed leadership onsite to prevent, address, and remedy harassment. Construction-industry employers should be aware of the EEOC’s guidance, and should take steps to come into compliance with the key recommendations, including by establishing clear and widely disseminated anti-harassment policies, developing channels for worker complaints, promptly investigating those complaints, and taking steps to prevent future harassment. If you have questions about your anti-harassment practices, would like guidance on how to communicate anti-harassment messages to your workers, or are in need of support to respond to any threatened or pending harassment litigation, contact your Seyfarth attorney or the authors of this post.

By: Matthew J. Gagnon

Seyfarth Synopsis: One issue that has consistently divided the federal courts is whether an equal pay plaintiff can establish a prima faciecase of wage discrimination by pointing to a single comparator of the opposite sex who is paid more, even where other comparators are paid the same or even less. Two Appellate Courts recently passed on an opportunity to clarify this issue for the lower courts. This lack of clarity has real-world consequences for employers.

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This is the third in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth’s yearly publication, Developments in Equal Pay Litigation, 2024 Update. The two previous posts can be found here and here.

As we have written about before, one of the key issues currently being disputed in equal pay litigation involves a “one-comparator” rule. Applying that rule, some courts have held that a plaintiff may establish a prima facie case under the federal Equal Pay Act (“EPA”) by pointing to the existence of one comparator of the opposite sex who is paid more, despite evidence that would tend to undercut an inference of sex-based wage discrimination. For example, may a plaintiff who is the second-highest paid person among their cohort establish a prima facie case of wage discrimination by comparing themselves to the highest paid person who happens to be the opposite sex? Or does the fact that they are paid more than every other member of their cohort—regardless of sex—undercut their claim of wage discrimination?

Some courts have held that a plaintiff fails to establish a prima facie case if there are a significant number of comparators of the same sex as plaintiff who were paid more than plaintiff, or a significant number of comparators of the opposite sex who are paid less than plaintiff, because those comparators suggest that discrimination is not the cause of plaintiff’s lower pay. Other courts have held fast to a “one-comparator” rule, holding that a plaintiff need only identify one comparator of the opposite sex who is paid more than plaintiff, regardless of how plaintiff’s compensation stacks up against others, of either sex, who do the same work.This question has divided the district and appellate courts. And now that some states’ laws have opened the door to equal pay claims based on differences other than sex (e.g., race, national origin, etc.), this issue is more important than ever.

Two Appellate Courts Leave The Issue Open

In 2023, two circuit courts had an opportunity to decide this issue in their jurisdictions, but both declined to do so. In Eisenhauer v. Culinary Institute of America, 84 F.4th 507 (2d Cir. 2023), a female plaintiff had relied on only a single comparator to establish her claim under the EPA and the New York Equal Pay Law. The employer argued that plaintiff’s prima facie case was undercut by evidence that showed there were other comparable males who made less than her, and other comparable females who made more than other comparable males. The district court had held that a plaintiff may establish a prima facie case by identifying a single male comparator at the initial stage of the case, but that the employer can later introduce additional data about other comparators when the issue is ultimately addressed on the merits at trial.

The employer urged the Second Circuit to take up this issue. In a footnote, the court acknowledged that the employer had argued that plaintiff “could not have established a prima facie case by identifying a single male-comparator employee who earns more than her while ignoring all other employees who perform substantially equal work,” and that “[t]he question of how many comparators are necessary to establish a prima facie EPA case is a source of disagreement among our sister circuits.” Id. at n.83. But rather than address the issue, the court noted that it was affirming the district court’s decision on other grounds, and even compounded the problem by holding that the issue was also undecided under the New York Equal Pay Law and would have to be decided separately by the district court if that court chose to retain supplemental jurisdiction over the state-law claim. (It later decided not to do so.)

The Eighth Circuit similarly sidestepped the issue in O’Reilly v. Daugherty Systems, Inc., 63 F.4th 1193 (8th Cir. 2023). In that case, the district court had come to the opposite conclusion as the Eisenhauer court, holding that a prima facie case could not be based solely on one comparator when there existed other evidence that undermined any inference of discrimination: “[Plaintiff] admitted that 10 male employees were either paid less than she or did not perform equal work. Given that alleged comparators that either were paid less did or did not perform equal work outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie EPA claim.” Daugherty Sys., Inc., No. 4:18-cv-01283 SRC, 2021 WL 4504426, at *6 (E.D. Mo. Sept. 30, 2021)

Like the Second Circuit, the Eighth Circuit was urged to decide the issue, this time by the plaintiff. The Eighth Circuit noted that plaintiff asked it “to only compare her job situation to that of [her one chosen comparator].” O’Reilly, 63 F.4th at 1197. The court obliged, simply assuming that the facts presented established a prima facie case, and decided the case on the basis of the defendant’s affirmative defenses. The court concluded: “In sum, [defendant’s] explanation for the pay differential—the differences in skillsets and experience and the desire to incentivize [plaintiff] to grow in the position—is sufficient to satisfy its burden of proving the pay differential was based on a factor other than sex.” Id. at 1197.

Implications For Employers

This issue is of particular concern to employers for many reasons. For one, some might argue that a “one-comparator rule” sets a low bar for equal pay plaintiffs to prove a prima facie case. Once a plaintiff has cleared that hurdle, it is up to the employer to justify the alleged pay discrepancy by one of the four EPA affirmative defenses. A strict application of a one-comparator rule arguably creates an unlevel playing field to the detriment of employers. Second, many employers actively and diligently seek to identify and root out any potential pay discrimination in their midst. Often, the only way to do that is by analyzing pay data across different departments or groups to ensure there are no unusual or unexplained pay discrepancies between males and females viewed as a group. These practices would not protect against a one-comparator rule. Unless an employer chooses to pay all employees doing the same work exactly the same, there will always be at least one employee who makes less for the same work than another employee of the opposite sex (or other protected group). If that is enough for that employee to establish a prima facie case, regardless of their employer’s best efforts to find and fix any potentially discriminatory pay structures, this could weaken the incentive to undertake those efforts in the first place.

These and other trends impacting equal pay litigation are discussed in much greater detail in Seyfarth Shaw’s yearly report, Developments in Equal Pay Litigation, 2024 Update. We highly recommend that report to any employer facing equal pay litigation, or to those who just want to know more about it so they can avoid such lawsuits in the future or keep abreast of changes in the law. We look forward to continuing to share our analysis of these issues.

In a significant legislative development, the Illinois House of Representatives has overwhelmingly approved Senate Bill 2979, with a vote of 81 to 30, which amends the Illinois Biometric Information Privacy Act (BIPA) to limit damages to one violation per individual, rather than each instance their biometric information is captured, collected, disclosed, redisclosed, or otherwise disseminated. The bill also amended the definition of “written release” to include an electronic signature.

Last month, we reported on the Illinois Senate’s passage of the bill by a vote of 46 to 13. This legislative move is a direct response to the Illinois Supreme Court’s 2023 decision in Cothron v. White Castle. The Court ruled that under BIPA, a claim accrues each time an individual’s biometric information is captured or collected. This decision highlighted the urgent need for legislative clarity, as White Castle argued that it could face damages exceeding $17 billion if each of its employee’s time clock scans were found to recklessly or intentionally violate BIPA. Recognizing the potential for such devastating liability, the Court called on the Illinois legislature to act.

In its original form, BIPA stated that an individual may be entitled to $1,000 or actual damages for each negligent violation, or $5,000 or actual damages for each reckless or intentional violation. The newly passed bill amends Sections 15(b) and 15(d) of BIPA to state that an “aggrieved person is entitled to, at most, one recovery under this Section.”

Having cleared both legislative chambers, the bill is now headed to Governor Pritzker for his signature.

If you have any questions about how this BIPA amendment may impact your business practices, please do not hesitate to contact your trusted Seyfarth Shaw advisor.

By: Matthew J. Gagnon

Seyfarth Synopsis: In its seminal decision, Bostock v. Clayton County, Georgia, the Supreme Court held that discrimination on the basis of sexual orientation or gender identity is tantamount to discrimination on the basis of sex. Employers are just beginning to grasp the wide-ranging impact that decision will have on the American workplace. The reasoning of this decision: that to treat an employee differently because of the sex of the person they are married to, for example, is necessarily the same as treating that person differently because of their sex, is turning out to have important implications for other areas of the law, including equal pay claims. Just one more thing for employers to beware of as they attempt to navigate the modern, culturally-charged workplace.

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This is the second in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth’s yearly publication, Developments in Equal Pay Litigation, 2024 Update.

In order to state a viable equal pay claim, a plaintiff need not show they were paid less in strictly monetary terms. Any discrepancy with respect to compensation or benefits can support such a claim. For example, one recent case turned on the fact that one senior executive was denied the use of a company car while others were not. The court in that case held that those facts were sufficient to state a prima facie equal pay violation, even though the complaining executive earned the same base salary as her comparators. See Pate v. Med. Diagnostic Labs. LLC, No. 7:19-cv-126-FL, 2021 WL 965906 (E.D.N.C. Mar. 15, 2021).

But when a disparity in benefits forms the basis of a gender discrimination claim, it is critical that a plaintiff establish their right to those benefits. This issue potentially puts equal pay litigation on a collision course with some of those most culturally contentious issues of the day. In Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020) the Supreme Court held that Title VII prohibits discrimination on the basis of sexual orientation or gender identity because those forms of discrimination are tantamount to discrimination on the basis of sex. That decision has rendered many workplace issues newly relevant, including the question of who qualifies for spousal benefits. That, in turn, threatens to give rise to whole new categories of equal pay violations.

This was the issue in one recent case, Doe v. Catholic Relief Services, 618 F. Supp. 3d 244 (D. Md. 2022). In that case, the plaintiff worked for a religiously aligned organization. He alleged he was underpaid compared to his peers because certain health benefits were denied to his spouse, another man, even though they were provided to the opposite-sex spouses of others in the same position. He claimed this was a violation of Title VII and the EPA (among other laws) because it amounted to providing health benefits to women employees, which covered their male spouses, while denying those benefits to male employees who also happen to have male spouses. Some would argue this reasoning shares some affinity with the reasoning underlying Justice Gorsuch’s opinion in Bostock, i.e., that treating someone differently because of their sexual orientation (or gender identity) is really the same thing as treating them differently because of their sex.

The religious organization employer argued that it retained its religious character by, among other things, maintaining a code of conduct and administering its employee benefits program consistently with its religious values. It argued that those values prevented it from providing spousal benefits to employees’ same-sex spouses. Referencing the Bostock decision, the court held: “When an employer discriminates against an employee based on sexual orientation, ‘it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.’” Id. at 252 (quoting Bostock, 590 U.S. at 665).

The court then had to delve into the complicated relationship between anti-discrimination statutes and religious rights, which is not usually an issue in equal pay litigation. The employer tried several different arguments to escape the reasoning of Bostock. First, it argued that it fell within Title VII’s exception for religious entities. But the court held that the relevant provision, § 702(a), was meant to allow religious organizations to hire only individuals of the same religion; it did not provide blanket protection for religious organizations to discriminate against those who do not share particular beliefs or standards tied to its religious identity. “A plain reading of § 702(a) reveals Congress’s intent to protect religious organizations seeking to employ co-religionists, but the reading urged by [employer] would cause a relatively narrowly written exception to swallow all of Title VII, effectively exempting religious organizations wholesale.” Id. at 253.

The employer also argued that it was protected by the Religious Freedom Restoration Act (“RFRA”). That statute provides that “a person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c)). The Doe court noted that the Supreme Court had not given clear guidance regarding Title VII’s interaction with the RFRA. However, the court held that the plain language of RFRA was directed at restricting activities of the government that might substantially burden the free exercise of religion; it was not directed at private parties. “This court finds as a matter of law that RFRA restricts the government rather than private parties, and so [employer] may not assert RFRA as an affirmative defense against [plaintiff’s] claims.” Id. at 254.

Finally, the court held that both Title VII and the EPA were generally applicable laws that did not selectively burden religiously motivated conduct while exempting comparable secularly motivated conduct, and so did not violate the Free Exercise clause of the First Amendment. The court concluded: “Our Constitution’s solicitousness of religious exercise is not carte blanche for any religious institution wishing to place itself beyond the reach of any neutral and generally applicable law.” Id. at 256. But, in a move that demonstrates the novelty of these issues, the court certified two questions for decision by the Maryland Supreme Court: whether the Maryland Equal Pay for Equal Work Act (“MEPEWA”) prohibits discrimination on the basis of sexual orientation, and whether the Maryland Fair Employment Practices Act (“MFEPA”) allows certain religious organizations to discriminate because of sexual orientation. See Doe v. Catholic Relief Servs., No. 20-cv-1815, 2023 WL 155243 (D. Md. Jan. 11, 2023).[1]

Implications For Employers

This is only one case defining Bostock’s impact on the American workplace. And it does not even address what is arguably the most fundamental question in this context; namely, does the EPA prohibit discrimination in pay on the basis of sexual orientation or gender identity? If such discrimination is always tantamount to sex discrimination, then, arguably, the EPA would sweep within its ambit instances where LGBTQ individuals are paid more or less than their non-LGBTQ comparators for equal work. But some might argue that the language of the EPA—which specifically prohibits disparities in pay between “employees of the opposite sex”—is not as conducive to this type of interpretation as the “because of sex” or “on the basis of sex” language found in Title VII and some other statues. Nevertheless, as the Doe case demonstrates, such an interpretation may not even be necessary to raise issues regarding coverage under the EPA. Bostock remains a critically important decision that all employers should monitor with care.

These and other trends impacting equal pay litigation are discussed in much greater detail in Seyfarth Shaw’s yearly report, Developments in Equal Pay Litigation, 2024 Update. We highly recommend that report to any employer facing equal pay litigation, or to those who just want to know more about it so they can avoid such lawsuits in the future or keep abreast of changes in the law. We look forward to continuing to share our analysis of these issues.

[1] While beyond the scope of this article, the Maryland Supreme Court answered on August 23, 2023, holding that “the prohibition against sex discrimination in MFEPA does not prohibit discrimination on the basis of sexual orientation. MFEPA prohibits sexual orientation discrimination based on its specific enumeration of ‘sexual orientation’ as a protected class,” that “[a]dding sexual orientation as a protected category in MEPEWA will require . . . legislative action,” and that that “the General Assembly intended to exempt religious organizations from these kinds of MFEPA claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity.” Doe v. Catholic Relief Servs., 484 Md. 640, 660-61, 664, 667 (Md. 2023).

By: Matthew J. Gagnon

Seyfarth Synopsis: It has been nearly a decade since some states began enacting changes to their equal pay statutes that appeared to some to differentiate those statues from the federal Equal Pay Act (“EPA”) in significant ways. Although those changes garnered plenty of press and speculation from commentators, the courts themselves have been rather slow to address those differences. Almost a decade on, there are still very few cases that interpret those state-level changes as differing in any meaningful way from the federal standards. A recent decision from the Second Circuit may herald the beginning of a change in this dynamic, albeit still quite incremental, cautious, and slow.

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This is the first in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth’s yearly publication, Developments in Equal Pay Litigation, 2024 Update. 

One of the most critical issues facing employers in today’s equal pay litigation landscape is whether and to what extent certain state laws have changed the legal standards governing key provisions of a plaintiff’s prima facie case and an employer’s defenses. Beginning with California in 2015, some states made what looked to some like fairly significant changes to their equal pay statutes (e.g., New York, Illinois, New Jersey, Massachusetts, Washington; the list is ever growing). Some commentators and plaintiffs’ lawyers have argued those changes introduced a different set of standards into equal pay litigation, especially as they relate to determining what counts as “equal” or “substantially similar” work for purposes of identifying appropriate comparators, and the factors employers may rely upon as an affirmative defense.

The courts have generally not gone along. Most decisions that have come out since those changes were enacted continue to interpret the new state statutes in a manner that is consistent with federal law. In 2023, one Appeals Court finally did find a difference between state and federal law, but not in a way that many expected.

Recent Decisions in the Second Circuit

In Eisenhauer v. Culinary Institute of America, 84 F.4th 507 (2d Cir. 2023), which was an important case for several reasons (see here and here), the Second Circuit addressed a relatively narrow distinction between the federal and New York equal pay laws. In that case, a female professor at a college and culinary school alleged she was paid less than a male professor who managed a similar course load. The employer argued that the plaintiff and her comparator had been hired at different salaries, and that that pay disparity increased over time due to the sex-neutral terms of a compensation plan that gave the same percentage increase to professors’ salaries each year. The plaintiff argued that the plan could not be used by the employer as a “factor other than sex” affirmative defense because the resulting pay disparity was not connected to any differences between her and her comparator’s job. The Second Circuit framed this question as asking whether the federal EPA requires an employer to show that the factor is job-related, i.e., related to the job in question.

The Second Circuit acknowledged that it had earlier held that a facially sex-neutral job-classification system alone may only constitute a “factor other than sex,” when it is rooted in legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue. But the Eisenhauer court clarified that this requirement was only applicable to job-classification systems: “[A] job-relatedness requirement is necessary to ensure that a job-classification system is not a pretext for sex discrimination,” because, “Jobs are, after all, the principal feature of job-classification systems.” Id. at 516-17 (emphasis in original). More generally, the Second Circuit concluded that there is no job-relatedness requirement for the “factor other than sex” defense under the federal EPA because that requirement appears nowhere in the EPA’s text and would conflict with the statute’s plain meaning.

But, according to one argument, the same is not true for the New York EPA. The court held that when the New York legislature amended the New York equal pay statute, it added a provision that required a “factor other than sex” to be “job-related with respect to the position in question,” among other things. See N.Y. Lab. Law 194(1)(iv). The Second Circuit remanded the case back to the district court to reconsider its decision in light of the different standards under the federal and New York statutes, despite the fact that the district court had found in favor of the employer even after applying the more stringent job-relatedness standard to the federal EPA. According to the Second Circuit, the district court erred when it applied this same standard to analyze the “factor other than sex” defense under the state and federal statutes.

But in another recent case, which was decided by a court in the Second Circuit after Eisenhauer, Edelman v. NYU Langone Health System, No. 21-cv-502(LJL), 2023 WL 8892482 (S.D.N.Y. Dec. 26, 2023), the court arguably made no distinction between the state and federal laws with respect to other aspects. In particular, the court appeared to rely on the same analysis to determine whether plaintiff and her comparator performed “equal” (the federal language) or “substantially similar” work (the state language).

The court first acknowledged the change wrought by Eisenhauer, noting that it must now “analyze a plaintiff’s ‘[NY EPA] claim as altogether distinct form her [federal] EPA one.’” Id. at *7 (quoting Eisenhauer, 84 F.4th at 525). And in fact, the court was careful to apply a slightly different standard to analyze the employer’s “factor other than sex” affirmative defense under New York law, noting that “New York law specifies that such a factor must ‘be job-related with respect to the position in question and . . . be consistent with business necessity.’” Id. (quoting NYLL § 194(1)(iv)(B)). But when it considered the plaintiff’s prima facie case, the court arguably made no effort to distinguish between the New York EPA and the federal EPA. After citing a long line of precedent, which mostly predated the New York’s ostensible change to a “substantially similar” standard, the court concluded that “the evidence at trial establishes that Plaintiff did not perform equal work to [comparator] because their positions did not require substantially equal effort.” Id. Notably, the court came to the same conclusion under the NY EPA going so far as to hold that the “equal work inquiry” is “’critical’ for unequal pay claims under the [NY EPA].” Id. at *10 (quoting Woods-Early v. Corning Inc., 2023 WL 4598358, at *4 (W.D.N.Y. July 18, 2023)).

Implications For Employers

When read together, it could be argued that these two cases recognize only the faintest glimmer of daylight between the federal and New York equal pay statutes. If so, they are significant because they are among the very few cases that do. The implications for employers could be profound. If a court were to hold, for example, that “substantially similar” work is somehow different from “equal” work,  plaintiffs’ counsel might use that to argue that some of the new state-level statutes actually lower the burden on a plaintiff to establish a prima facie case.

Many class cases founder on the “equal” work requirement because it is difficult to show, on a class-wide basis, that many different employees all perform the same job. If plaintiffs’ counsel were able to argue successfully that some state statutes have relaxed that standard, that could open the floodgates of equal pay class action litigation. For now, most courts are still arguably interpreting these provisions the same way under either the state or federal statutes. Employers should not take their eye off this ball. Just one errant decision by a court anywhere in the country could have a massive impact on employers with a nationwide footprint.

These and other trends impacting equal pay litigation are discussed in much greater detail in Seyfarth Shaw’s yearly report, Developments in Equal Pay Litigation, 2024 Update. We highly recommend that report to any employer facing equal pay litigation, or to those who just want to know more about it so they can avoid such lawsuits in the future or keep abreast of changes in the law. We look forward to continuing to share our analysis of these issues.

By: Yoon-Woo Nam, Alexandra R. Hassell, and Christopher DeGroff

Seyfarth Synopsis: The U.S. Equal Employment Opportunity Commission (EEOC) recently released its 2023 Annual Performance Report and a new dashboard highlighting resolved cases. Compared to the prior fiscal year, the EEOC contacted substantially more potential claimants and filed a great number of merits lawsuits in 2023. It also released a new tool called “EEOC Explore” to track litigation statistics across the country.

EEOC Litigation Lurches Forward In Fiscal Year 2023

The EEOC released its Annual Performance Report for fiscal year 2023 that quantified the results of its enforcement of federal anti-discrimination statutes. The report showed a jaw-dropping increase of the EEOC’s contacts with potential claimants by over 600,000 in FY 2023 (rising 25% over FY 2022). The EEOC also secured over $440.5 million for claimants with charges and claims against private and public employers last year, which is a substantial increase from FY 2022. And these figures may increase further in FY 2024 – the EEOC’s strategy to prioritize systemic discrimination charges led to the filing of 50% more merits lawsuits compared to FY 2022. Chair Burrows emphasized that under her tenure, the EEOC will focus its resources, which included the hiring of nearly 500 attorneys, investigators and other personnel, to respond to an increased demand from discrimination complainants in the workplace. The EEOC also has committed to renewing its scrutiny of reasonable accommodations for pregnant workers in FY 2023, following the passage of the recently enacted Pregnant Workers Fairness Act, and the EEOC began accepting related charges by the end of June 2023.

While the Annual Performance Report does not break out its enforcement metrics against private sector employers, the EEOC makes clear that it will prioritize contact with private sector workers as evidenced by its campaign of hosting community outreach programs across the country.

EEOC Explore – A Data Dashboard

The EEOC also released a new Data Dashboard, which highlights selected resolved cases from the past five fiscal years in recognition of the 60th anniversary of the Civil Rights Act of 1964. The EEOC expanded its library of data visualizations of aggregated charge data, workforce demographic data and limited employer-reported pay data that it plans to supplement in the future.

For example, the EEOC’s visualization concerning Charges filed in all regions shows a notable spike in retaliation claims:

Implications for Employers

Employers ignore EEOC filing trends at their peril. By understanding the strategic priorities reflected in the report, employers can better position themselves to avoid the anticipated increase of EEOC charges by staying current on federal anti-discrimination laws, particularly the Pregnant Workers Fairness Act, and maintaining vigilance in their response to requests for accommodation in the workplace.

Employers should also use EEOC Explore to review Charge and Litigation statistics (i) by state and (ii) type of claim made to keep abreast of litigation trends in the states where their employees work to ensure compliance with all federal, state and local laws in those areas.

By: Matthew J. Gagnon

We are pleased to announce the publication of the latest edition of Developments in Equal Pay Litigation, available as an eBook here. This report contains our annual analysis of trends and developments in the relentlessly dynamic body of law that is the equal pay litigation and legislation landscape. It was released along with Seyfarth’s 50 State Equal Pay Reference Guide, Global Pay Equity Desktop Reference, and Pay Transparency Wage Range Disclosure Compendium reports. We hope our readers will find these resources useful as a guide to these developing legal issues, here and around the world.

Developments in Equal Pay Litigation is intended primarily to be a guide to litigation trends. The first section discusses recent developments in equal pay legislation at both the federal and state level, with an emphasis on the different legal risks they pose to employers operating in many jurisdictions. The second section is the heart of the book; it contains an in-depth analysis of recent decisions from the federal and state courts concerning pay discrimination, including substantive trends and developments in the legal theories and defenses advanced by plaintiffs and employers. The third section discusses significant developments in federal regulation and enforcement of equal pay issues as driven by the EEOC, for whom pay discrimination continues to be a top enforcement priority.

Some of the cutting-edge issues discussed in more detail in this book are:

  • An analysis of how courts are interpreting the new state-level equal pay statutes and how they may differ (or not) from the federal Equal Pay Act and Title VII;
  • How courts are navigating the growing debate over the “one-comparator” rule; i.e., whether an employee can establish a prima facie case of wage discrimination by pointing to just one comparator, despite other evidence that might undercut an inference of discrimination;
  • New theories that attempt to expand the scope of equal pay liability, including efforts to undermine some of the more common arguments employers use to explain a wage disparity in accordance with the statutorily-defined affirmative defenses;
  • The implications for equal pay litigation of the Supreme Court’s Bostock decision, which held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity; and
  • A new section added this year that may be of great concern to many employers: recent case law that addresses maintaining attorney-client privilege over equal pay audits and internal investigations.

Our goal is to provide analysis and commentary regarding these and other developments so that corporate counsel, human resources professionals, and other decision makers have the up-to-date guidance they need to make informed decisions regarding equal pay issues, including a solid background in the types of issues that often come up in equal pay litigation.

In the coming weeks, we will also publish a series of posts that address in more detail what we regard as some of the more significant developments discussed in this book. We look forward to continuing this conversation with you!