By: Ala Salameh, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: On January 2, 2025, the EEOC released a report underscoring that a gender pay gap among federal employees has an age component as well; the gap is larger for those age 40 and over relative to those under age 40. In light of these findings, the EEOC recommends that federal employers identify and address gender-based barriers to equal pay and implement initiatives to eliminate pay inequities. While the report specifically examines federal entities, employers across all industries and sectors should take note amid the surge in state pay equity and transparency requirements. Critically, the EEOC’s focus on federal employer pay gaps may signal related enforcement efforts for private employers.

The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged with enforcing laws prohibiting discrimination in employment, including gender-based discrimination and discrimination against those age 40 and over. Recently, the EEOC leveraged data on over two million federal employees to look more closely at gender pay gaps, including in particular (1) the respective gender pay gaps across different age groups; and (2) how other factors such as race, education, age, occupation, and federal agency related to those pay disparities.

The EEOC’s analysis is based on data from fiscal year 2021. During that period, older workers were employed by the federal government at over twice the rate of younger workers (30.9% of the federal workforce was under age 40; and 69.1% was over age 40).[1] The populations of women and men in the dataset were similar in ways that aided the analysis. For example, the ratio of women to men was nearly identical in both the younger and older cohorts. In the younger cohort, the average age of women and men was identical; in the older cohort, the average age of women and men differed by only a few months. There are a number of key takeaways from the EEOC’s report:

  1. The gender pay gap exists among all age groups but was meaningfully larger among employees over age 40. When looking at median wages across genders and ages, women under 40 were paid an average of $2,608 less than men annually. The gap was more than two-and-a-half times greater for women over 40, who were paid an average of $6,927 less than men annually.
  2. Skills and backgrounds do not explain the difference. In its study, the EEOC controlled for “human capital” factors and “personal characteristics” such as education, years of federal work experience, race, disability status, age, and veteran status. Controlling for these factors did not explain the pay gap. To the contrary, considering these additional factors revealed an even larger gender pay gap than suggested by median pay figures. Said another way, women who possessed the same attributes that for men “generally would result in more pay” still were paid less. Controlling for these factors, the researchers concluded that women over 40 were paid $8,228 less than male workers in the same age group.
  3. The factor most associated with narrowing the gap for workers under 40 was educational attainment. The study showed that educational attainment was correlated with higher pay. In both age groups, women were more likely to have a master’s, professional, or doctoral degree than their male counterparts. The difference was even more pronounced among women under 40, who presented higher educational attainment relative to their senior counterparts. For this younger group, educational attainment accounted for a decreased the gender pay gap of $1,665 annually. 
  4. The factor most associated with narrowing the gap for workers 40 and over was veteran status. Women over age 40 who identified as veterans  were able to close the gender pay gap to a degree, reducing the shortfall by $1,314 annually. Veteran status is not a panacea, however, as “[o]n the whole, veterans were paid slightly less than non-veterans, and women were less likely to be veterans than men.”

Implications for Employers

Overall, the EEOC’s report reflects that the gender pay gap remains among men and women working for the federal. Though the gap has narrowed for women workers under 40, it still amounts to thousands of dollars less income each year and it cannot be explained by controlling for factors such as education and experience.

To address this ongoing disparity, the Commission recommends that federal agencies identify and address barriers, especially for women over age 40, to ensure they have equal access to higher paying occupations and roles. The EEOC’s “heal thyself” message to the federal government could also serve as an early warning to private employers that broader enforcement efforts may be on the way.  This sort of “intersectional discrimination,” meaning the overlap between two protected classes, has historically been a hot topic for the agency.  Employers should be mindful of this issue. 

And of course, employers also need to bear in mind that federal agencies do not, alone, carry the responsibility of ensuring equal pay. States and localities continue implementing pay transparency, reporting, and equity laws as described in Seyfarth’s 50 State Equal Pay Reference Guide; and in recent analyses on developments in Massachusetts, Illinois, New Jersey, and Minnesota.

If you have questions about pay equity laws and obligations in your area, please connect with the authors of this article and/or your Seyfarth attorney.

[1] The Impact of Age on the Gender Pay Gap in the Federal Sector, The Equal Employment Opportunity Commission (Jan 2, 2025), https://www.eeoc.gov/sites/default/files/2025-01/Gender_Pay_Gap_By_Age_Report_final_508.pdf.

By: Taylor Iaculla, Yoon-Woo Nam, and Andrew L. Scroggins

Seyfarth Synopsis: On December 19, 2024, the Equal Employment Opportunity Commission (“EEOC”) published a new fact sheet titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.” The fact sheet describes some of the technologies employees may be fitted with, the types of information that may be tracked –from smart watches that can monitor physical activity, to GPS devices that track location, to devices that detect operator fatigue – and how some uses of that information may violate EEO laws. It also provides the latest illustration of the EEOC’s heightened focus on technological developments implicating employment laws and puts employers on notice that technological tools must be assessed to ensure their use does not run afoul of federal employment laws.

Use of Wearable Technologies in the Workplace

In its fact sheet, the EEOC addresses the increasingly common workplace use of “wearables,” which it describes as “digital devices embedded with sensors and worn on the body” that can track “bodily movements, collect biometric information, and/or track location.” In addition to smart watches or rings that track the activities of those who wear them, the EEOC also called out environmental or proximity sensors that warn wearers of nearby hazards; smart glasses and smart helmets that can measure electrical activity of the brain or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; and GPS devices that track location.

Although these devices may provide potential benefits, such as helping workers to avoid hazardous conditions for themselves and others, the EEOC warns that use of the devices may possibly violate federal employment laws.

Collecting Employees’ Health Data

Some of the scenarios proffered by the EEOC describe behavior that is problematic on its face. For example, the EEOC describes an employer who tracks an off duty employee, notes that they have visited a dialysis center, then inquires further in a way that reveals family medical history and genetic information in violation of the law. While this strikes us as an uncommon scenario, employers should take note of the EEOC’s broader point: Wearables may collect certain information about an employee’s physical or mental conditions or perform diagnostic testing in a manner the EEOC finds similar to conducting “medical examinations” or making “disability-related inquiries” under the Americans with Disabilities Act (“ADA”). Generally, permissible “examinations” and “inquiries” must be “job related and consistent with business necessity.” These requires fact-specific, individualized assessments to determine whether an employee is a direct threat – a standard that can be met only in “relatively limited” circumstances, according to the EEOC.

Another ADA trap for employers: If the data collected from wearables is deemed protected under the ADA, then it must be kept in separate medical files and treated as confidential.

Using Collected Information in Employment Decisions

Employers may be held liable for making employment decisions based on information collected through wearable technologies as well.

The EEOC warns employers not to use the devices or data in a discriminatory manner. For instance, an employer may not require the use of wearables only for members of a protected class, or use wearables to surveil or scrutinize those who have engaged in protected EEO activity. Similarly, relying on data from wearables that provide less accurate results for individuals with darker complexions when making employment decisions could violate Title VII of the Civil Rights Act of 1964 (“Title VII”). As a whole, the fact sheet cautions employers against using data in a way that would identify or implicate an employee’s protected characteristic when making employment decisions.

Accommodation Requests

The EEOC also reminds employers of their obligations under Title VII, the ADA, and the Pregnant Workers Fairness Act (“PWFA”), which may require them to make exceptions to their mandatory wearables policy. It expects that any mandatory wearables policy will permit reasonable accommodations. For example, an employer may need to exempt employees from wearing such devices, or provide a reasonable alternative, due to pregnancy, disability, or an employee’s religious beliefs.

Implications for Employers

In sum, the EEOC recommends that employers using or mandating wearable technologies in the workplace remain cognizant of (1) what data is collected; (2) the efficacy of the data; (3) proper storage of any data collected; and (4) the manner in which the data is used, if at all, to make employment decisions.

The fact sheet serves as yet another reminder to employers that existing law applies to new and advancing technologies. It is not enough that the devices have a legitimate purpose on the jobsite, even to preserve individual or overall workplace safety. Employers are responsible for any adverse employment decisions taken based on data collected by wearables and must likewise ensure any data collected is properly stored and maintained. In light of this, employers should look carefully at any new tools that are introduced to the workplace to understand how they work, what information is gathered, how the information is used and stored, and how the information may be misused or misconstrued, then take action to stay within the bounds of EEO laws.

This latest publication also foreshadows the EEOC’s enforcement priorities, showing once again that the EEOC will scrutinize the technological tools that employers increasingly rely on.

By: Adam Rongo, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: On November 15, 2024, the EEOC released its Agency Financial Report (“AFR”) for Fiscal Year 2024. The AFR is intended to provide a description of the Agency’s financial management and offer high-level performance information. This year’s edition marks the sixth version of the publication, following the release of the inaugural AFR in FY 2019. In years past, the EEOC has used the AFR as a forum to tout its successes in enforcement efforts. In a departure, this year’s AFR includes little information of that type, focusing on how EEOC measures its performance but devoting little space to explaining how it performed in FY 2024.

The EEOC Did Not Include Performance Highlights in its Report

In an interesting change from the last time we issued an update on the EEOC Agency Financial Report, the EEOC did not include a comprehensive list of performance highlights in its report. As an example, the Agency did not include details about its monetary recoveries beyond narrowly discussing its enforcement efforts under the Pregnant Workers Fairness Act (“PWFA”). Instead, the agency highlighted its strategic goals and noted that it met or exceeded 12 of its 15 targets outlined in its Strategic Plan, and partially met the remaining three. However, the agency did not go into detail on what those measures were.

Pregnant Workers Fairness Act

The EEOC appears to be prioritizing its enforcement actions under the PWFA. Specifically, the report focuses on notable investigations the EEOC conducted while enforcing the Act. For example, the EEOC described one charge investigation where it reportedly found evidence that an employer violated the PWFA because it failed to provide a reasonable accommodation and forced an employee to take unpaid leave under the Family and Medical Leave Act (“FMLA”) because of her pregnancy. Following its finding, the charge resolved for over $130,000.00 for the charging party. The resolution also included injunctive relief such as the charging party’s leave being restored. The employer was also required to revise its policy for pregnancy and accommodations and provide annual training. 

The report also highlighted another charge investigation that was resolved for over $180,000.00 in monetary relief to a charging party. The charge alleged that the employer had failed to post notices describing the applicable provisions of the PWFA, and that the charging party’s pregnancy-related medical condition was not accommodated and her employment was terminated. In addition to providing monetary relief, resolution of the charge also included an agreement that the employer provide training for supervisory and non-supervisory employees on the federal laws that prohibit employment discrimination based on pregnancy.

The EEOC closed out this section of the report by highlighting that it filed five PWFA lawsuits in 2024. Those lawsuits were filed in Kentucky, Oklahoma, Alabama, Maryland, and Florida. The report indicates that the EEOC is likely to continue to focus on training employers about the PWFA and also continue its aggressive enforcement efforts under the Act. Even with a new administration, we expect the EEOC will make good on this promise, as President Trump’s expected pick for the EEOC Chair position, Andrea Lucas, has signaled her support of the PWFA (although she has questioned the propriety of some EEOC rulemaking under the statute).

Other Key Developments and Initiatives

In addition to its enforcement efforts, the EEOC also highlighted that going into 2025 it plans to continue to update “decade-old public facing portals,” noting its creation of an E-File for attorneys as a highlight of this effort. The EEOC also stated that it is trying to increase access to communities that are not proficient in English. To the extent the EEOC is able to succeed in these efforts, we could see an increase in charges filed with the EEOC.

Implications for Employers

The EEOC continues to give heightened focus to the PWFA in many facets of its communications. That same focus is likely to continue in litigation efforts as well, including aggressive charge enforcement and possible litigation as we move into 2025. Employers should accordingly check their EEO policies to be sure that they comply with the PWFA, and ensure that those policies are posted and available to all employees.

We will continue to monitor trends and developments in the EEOC’s mission, including the types of cases that are filed and how the agency chooses to fight those lawsuits in court. As we do every year, we look forward to providing you an in-depth look at those trends and developments in the months to come.

Authors: Christopher J. DeGroff, Andrew L. Scroggins, Samantha Brooks, James P. Nasiri and Ridhima Bhalla

Seyfarth Synopsis: Following a handful of sluggish years in terms of EEOC litigation activity, the Commission returned to form by filing 144 merit lawsuits in Fiscal Year 2023. Given that the EEOC finally secured its Democratic majority and had a notably active FY 2023, many expected the Commission to continue this momentum into FY 2024. However, the exact opposite happened—at the time of publication, the EEOC filed only 96 merit lawsuits. This represents not only a filing decline of about 35% compared to FY 2023, but also one of the lowest numbers of EEOC-initiated merit lawsuits in nearly three decades. While the EEOC had a surprisingly quiet year on the litigation front, a close analysis of its FY 2024 filings can help employers understand the Commission’s priority areas and understand what to expect going forward.

In the years following the start of the COVID-19 pandemic, the EEOC scaled down its litigation efforts by filing far fewer lawsuits than it had in years past. For example, our prior EEOC year-end reports documented 94 merit filings in FY 2020, 111 filings in FY 2021, and 94 filing in FY 2022 (the EEOC’s fiscal year runs from October 1 to September 30).These numbers stood in stark contrast to the EEOC’s litigation activity under the Obama Administration, where the Commission filed as many as 300 merit lawsuits in certain years.

As the EEOC transitioned into FY 2023, the Commission appeared to have the necessary leadership and resources in place to increase its litigation activity to these Obama-era levels. The EEOC’s national leadership structure of five Commissioners no longer had a Republican majority, and the Republican General Counsel had been fired. The EEOC also received a sizable budget increase. This situation predictably led to more litigation activity, as the EEOC filed 144 merit lawsuits in FY 2023, which represented a five-year high for the Commission. In addition, in the final month of FY 2023, the U.S. Senate confirmed President Biden’s appointee for EEOC Commissioner (Kalpana Kotagal), giving Democratic appointees majority control of the Commission for the first time in many years. Then just weeks later the Senate confirmed a new General Counsel (Karla Gilbride) to lead litigation efforts.

With this momentum, many expected the EEOC to continue its trajectory into FY 2024 and further increase its filing activity. But the litigation surge appears to have weakened significantly. The EEOC filed just 96 merit lawsuits in FY 2024—back to pandemic levels and among the very lowest number observed in the past three decades. To put this number in context, last year in FY 2023, the EEOC filed 71 lawsuits in September alone. The bottom line is that the Commission exhibited a staggering drop in litigation activity in FY 2024.

Begging the question: why did the EEOC’s litigation activity take such a dramatic downturn in FY 2024? With a Democratic majority and Democratic General Counsel in place at the EEOC, it does not appear that partisan politics obstructed any of the Commission’s litigation goals. One potential factor could relate to the EEOC’s resources. The Commission requested a budget increase of more than $26 million in FY 2024, but ultimately, Congress only approved the same amount of funding the EEOC received in FY 2023. A 5.2% pay raise for employees combined with increased operational costs at the Commission cut into that amount, and just last month, the EEOC was faced with a potential one-day furlough to address its limited funding. The EEOC was able to avoid this furlough, but budget concerns are surely top-of-mind for EEOC leadership. Added to the mix: this year’s EEOC was saddled with a cumbersome inventory from the previous year’s filing surge, and aging cases from years before that. Ultimately, the EEOC approached FY 2024 with more cases but the same resources.  

FY 2024 Cases Filed By Month

At the end of every EEOC Fiscal Year, our team at Seyfarth analyzes each EEOC filing in order to identify key trends and provide our one-of-a-kind analysis. Beginning with the timing of the EEOC’s filings, the line graph below displays the number of EEOC lawsuits filed per-month from FY 2021 through FY 2024. As is typical, the EEOC started out FY 2024 at a slow pace, filing only five lawsuits between October 2023 and January 2024. However, unlike prior years, the Commission’s filing activity did not increase as the year progressed. The EEOC filed just three lawsuits in each of March and June, which represents a four-year low in each respective month. The Commission’s litigation activity typically sees a dramatic spike in September, but this FY, the EEOC filed only 56 lawsuits in September (compared to 71 September filings in FY 2023, 46 September filings in FY 2022, and 59 September filings in FY 2021). Additionally, while the Commission did hit a four-year high in terms of its 19 filings in May, almost all of these cases (14 of 19) concerned the enforcement of EEO-1 Report requirements (see below for a more detailed discussion of these cases).

FY 2024 Cases Analyzed By EEOC District Office

With the EEOC experiencing such a significant dip in overall lawsuit filings in FY 2024, the expectation may be that all EEOC District Offices saw a decline in filings as well. Surprisingly, a few EEOC Districts actually increased their number of filings in FY 2024 despite overall EEOC filings decreasing by about 35%. The Indianapolis District Office filed 10 lawsuits in FY 2024 (compared to 9 last year), the Atlanta District Office filed 11 lawsuits this year (compared to 7 last year), and the Phoenix District Office also filed 9 lawsuits this year (compared to 8 last year). Conversely, Districts that have traditionally led the pack in filings—such as Chicago, Los Angeles, and New York—saw extreme declines in filings this year, as these Offices filed only 7, 3, and 8 lawsuits, respectively. The West Coast in particular was notably quiet this year, as the Los Angeles and San Francisco combined for just 7 merit filings in FY 2024. The Philadelphia District Office, which led the way last year, saw the largest decline from 22 filings in FY 2023 to just 14 filings in FY 2024.

Analysis of the Types of Lawsuits Filed in FY 2023

In addition to tracking the timing and location of EEOC lawsuit filings, we also analyze the underlying claims asserted in all EEOC-initiated cases. At a high level, despite the drastic dip in overall filings, the EEOC’s FY 2024 filing numbers generally align with prior years. Once again, the vast majority of its lawsuits were filed under Title VII and the Americans with Disabilities Act (“ADA”). While the Age Discrimination in Employment Act (“ADEA”) is typically the third-most common statute cited in EEOC cases, the Commission lodged only seven ADEA filings in FY 2024.

Equal Pay Act (“EPA”) claims are typically not a common basis for EEOC lawsuits, and that trend continued this year as just two were filed. On the other hand, the Commission opted to file its first case in several years alleging violations of the Genetic Information Nondiscrimination Act (“GINA”), which prohibits discrimination based on genetic information in employment and medical coverage. The EEOC also filed a handful of lawsuits this year alleging pregnancy-based claims. Most notably, the EEOC filed its first three lawsuits under the Pregnant Workers Fairness Act (“PWFA”). The PWFA went into effect June 27, 2023, and on April 15, 2024, the EEOC issued its final regulations concerning enforcement of the Act.

Taking a closer look at these numbers, the ADA remained a focus for the EEOC. The Commission filed 42 disability-related lawsuits in FY 2024, which is nearly 40% more than it filed in FY 2022, despite overall filings in FY 2022 totaling just two fewer than this year. While the EEOC’s filings concerned a broad range of disabilities, the Commission built on a trend from the end of the previous year and continued to prioritize hearing-related disabilities. In January 2023, the EEOC published guidance regarding hearing disabilities in the workplace. Since that point, the Commission has filed a total of 16 ADA cases on behalf of hearing impaired employees (nine in FY 2023 and seven in FY 2024).

Another consistent litigation priority for the EEOC is curbing workplace harassment. To that end, in April 2024, the EEOC released its updated Workplace Guidance to Prevent Harassment. This guidance expanded upon prior EEOC materials by addressing harassment in virtual work environments. Additionally, in June 2024, the Commission released anti-harassment guidance specifically targeting employers in the construction industry. The EEOC’s emphasis on halting workplace harassment was reflected by the Commission filing double-digit hostile work environment lawsuits for at least the third straight year.

The EEOC accused several employers of running afoul of anti-harassment laws in non-office work environments. For example, in FY 2024 the EEOC sued:

  • An Arizona manufacturer of human and pet health supplements alleging sex discrimination, sexual harassment, and retaliation (EEOC v. Good Health Manufacturing, Inc., No. 2:24-cv-1679, D. Ariz.);
  • An Illinois hog farm alleging discrimination and harassment on the basis of an employee’s sex and gender identity (EEOC v. Sis-Bro, Inc., No. 3:24-cv-968, S.D. Ill.);
  • A Massachusetts tire dealer alleging a pattern of discrimination and harassment against Hispanic employees (EEOC v. Bob’s Tire Co., Inc., No. 1:24-cv-10077, D. Mass); and
  • Two car dealers—one in Texas and the other in Indiana—alleging sexual harassment against female employees (EEOC v. NICPA Central Auto Group, LLC & Central Austin Motorcars, No. 1:23-cv-01541, W.D. Tex.; EEOC v. Chesterfield Valley Investors, LLC, No. 1:24-cv-00721, S.D. Ind.).

Another interesting takeaway from the EEOC’s FY 2024 filing numbers is that, for the first time in many years, the EEOC used its litigation capabilities to enforce the submission of EEO-1 Reports. By way of background, the EEOC requests annual workforce data from employers with more than 100 employees, with the most common type of report being an EEO-1 Employer Information Report. As the EEOC notes on its website, “[e]mployers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary.” In an effort to enforce this requirement, the EEOC filed a whopping 16 lawsuits alleging Title VII violations against covered employers who failed to file adequate EEO-1 Reports. The Commission posted a press release in May touting these EEO-1 Report filings, and emphasizing that “data collection is an important tool” and that Congress authorized the EEOC not only to collective EEO-1 Report data, but also to enforce data reporting compliance in the courtroom. The vast majority of these cases (14 of the 16) were filed in May, and nearly every EEOC District Office filed a lawsuit concerning EEO-1 Reports. The only District Offices that did not file such a case in FY 2024 were Chicago, Memphis, San Francisco, and Washington, DC (which did not file any lawsuits this year).

As a final point regarding the type of claims asserted by the EEOC in FY 2024, the Commission filed only four religion-based cases. This is particularly interesting because, as we noted in our July 2023 post analyzing EEOC charge numbers, EEOC charges alleging religious discrimination increased nearly seven-fold between FY 2021 (2,111 religion-based charges) and FY 2022 (13,814 religion-based charges). The EEOC filed 11 religious discrimination cases last year, including multiple lawsuits brought on behalf of employees terminated for refusing to comply with vaccine mandates on religious grounds. Despite this massive spike in religious discrimination charges, the EEOC filed only four religion-based lawsuits in FY 2024, with just one of these cases involving COVID-19 vaccination. Given that it has been several years since this batch of EEOC charge filings, it seems that the apparent wave of EEOC religion-based, COVID-19 litigation will be left largely to the private plaintiffs’ bar.

Implications For Employers

While the overall takeaway from the EEOC’s FY 2024 is that the Commission saw a substantial decrease in litigation activity, employers should not drop their guard. One of the EEOC’s two Republican Commissioners (Keith Sonderling) left the EEOC last month, thereby solidifying a Democratic majority for the near future. The Commission also requested a budget increase of over $33 million for FY 2025, which if approved would allow the EEOC to enhance its litigation resources, and likely result in increased case filings. Moreover, the EEOC’s activity in FY 2024 demonstrates that employers—particularly those within the Atlanta and Indianapolis regions—should stay tuned to EEOC trends, with a special emphasis on harassment and disability-related filings. Covered employers should also be sure to submit their EEO-1 Reports in a timely fashion, as the Commission has shown that it will resort to litigation to obtain these reports.

We will continue to monitor these changes closely and keep readers apprised of developments. And, as always, we will keep up-to-date on EEOC data amid the ever-changing political climate and a surprisingly quiet year at the Commission.

For more information on the EEOC or how the Commission’s filing activity may affect your business, contact the authors—Christopher DeGroff, Andrew Scroggins, Samantha Brooks, and James Nasiri—or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By: Anthony LaPlaca, Dawn Solowey, Andrew Scroggins & Adrienne Lee

Seyfarth Synopsis:  In June 2024, Seyfarth published a blog article warning construction industry employers of recent anti-harassment guidelines issued by the EEOC.  We predicted that the EEOC has “put the construction industry squarely in its sights.”[1] In this follow-up Alert, we discuss recent cases confirming the renewed regulatory focus on the construction sector, which demonstrate the need to put in place sound practices for non-discriminatory recruitment, hiring, and training of the work force in order to be prepared for this heightened risk of government scrutiny. 

Recent EEOC Settlements

The U.S. Equal Employment Opportunity Commission (EEOC) has indicated, in no uncertain terms, that over the next five years it intends to prioritize the mitigation of systemic workplace problems and the historical underrepresentation of women and workers of color in the construction sector.[2]  Two recent cases confirm that the EEOC is true to its word when it comes to tackling racial and gender disparities in the construction work force.

In August 2024, the EEOC secured two consent decrees with two separate construction firms in Florida, totaling nearly $3 million.

In EEOC v. J.A. Croson LLC, seventeen Black and Hispanic workers alleged they were subjected to racial slurs, derogatory language, and offensive imagery at work, and were given less desirable assignments by their foreman and other leaders in the company. Two Black employees also asserted retaliation claims alleging they had been fired for making work environment complaints. On August 26, a court in the Middle District of Florida approved a $1.6 million settlement, which also mandates three years of significant injunctive relief for the plumbing and HVAC contractor, including requirements to revise its EEO policies and procedures and provide to the EEOC for review; establish a harassment reporting hotline; create an internal complaint procedure subject to strict timelines, with the investigator reporting directly to the CEO and Director of Human Resources; hire a third-party to provide 1.5 hours annually of mandatory training to all employees (in-person for managers and supervisors, online or pre-recorded for non-supervisory employees); conduct work environment surveys and audits to gauge whether race and/or national origin play a role in assignments; take steps to prevent discrimination in the selection process for the company’s apprenticeship tuition reimbursement program; and submit reports to the EEOC twice per year for the duration of the decree.

The following day, August 27, another federal judge in Florida approved a $1.25 million settlement between a paving company and 12 Black former employees and a class of other Black employees. In the case of EEOC v. v. Asphalt Paving Systems Inc., the EEOC alleged that the defendant construction company failed to prevent white employees from regularly using racial slurs toward Black colleagues, wearing clothing bearing the Confederate flag, and flaunting white power tattoos. The complaint also alleged that Black employees experienced disparate treatment regarding taking breaks. For example, it claimed they were forced to work and eat at the same time, and forced to work in the rain during a downpour while white workers were free to take breaks at their discretion and were allowed to sit inside until the storm passed. The EEOC also alleged that white employees would often bring guns to work, in violation of company policy, which made Black workers feel intimidated. According to the complaint, in one instance, a white manager fired three Black employees while grabbing his gun from his waist. In addition to the monetary relief, the three-year consent decree also requires Asphalt Paving to: hire a third-party Compliance Monitor who is responsible for conducting any complaints of discrimination, among other duties; review and revise its employment policies to prohibit race discrimination and detail the process for handling bias complaints and submit to the EEOC for comment; hire a third-party to provide 1.5 hours of anti-discrimination training annually to its Florida employees (in-person for human resources and supervisors, online or pre-recorded for non-supervisory employees); establish an anonymous hotline for reporting bias; track and monitor all complaints; and submit reports to the EEOC twice per year for the duration of the decree.

Data on Racial and Gender Disparities in the Construction Industry

Data from the U.S. Bureau of Labor Statistics highlights ongoing race and gender disparities in the construction industry. In 2023, of the nearly 11.9 million people employed in the construction sector, approximately 88% were white and about 90% were men. In May 2023, EEOC Chair Charlotte A. Burrows issued a report entitled “Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry,” finding that race and gender discrimination and harassment remain prevalent issues at construction worksites, which contributes to the underrepresentation of women and workers of color in construction.

Lessons for Construction Sector Employers

New Infrastructure Law Motivating EEOC to Intensify Monitoring of Construction Sector

Employers in the construction sector should anticipate increased scrutiny from the EEOC in the coming years, especially because of the Infrastructure Investment and Jobs Act, a $1.2 trillion initiative signed into law by President Joe Biden at the end of 2021. With substantial federal funding allocated for upgrading highways, roads, bridges, and other transit systems, the EEOC will be monitoring how this infrastructure money is spent and whether employers receiving these funds are operating in full compliance with discrimination laws.[3] According to its May 2023 report, the EEOC committed to collaborating with construction industry stakeholders including employers, unions, and workers to ensure fair hiring and employment practices and prevent discrimination and harassment. In addition, the EEOC will continue to utilize its administrative and litigation powers to resolve charges of discrimination, which includes investigating employee complaints and pursuing litigation to enforce the law.

Proactive Workforce Audits are Key to Mitigate Risk of Liability

To minimize legal risks and safeguard employees, employers in the construction industry are encouraged to proactively assess their workforce and worksites, including auditing for demographic disparities and taking documented steps to address such issues.  For example, employers can conduct anonymous employee surveys or use other means to gather comprehensive data on the demographics of their workforce and develop detailed action plans to address any identified disparities. This might entail creating and implementing targeted recruitment strategies to attract a diverse pool of candidates, as well as providing bias training for hiring managers. Documenting all steps taken and regularly reviewing progress will support ongoing compliance with anti-discrimination laws and foster a more inclusive workplace.

Training, Training, Training

One of the most impactful things that construction employers can do is to provide robust training.  Managers should be trained on avoiding workplace discrimination and harassment and when to escalate to human resources.  HR professionals should be trained on best practices for handling and investigating harassment and discrimination complaints.  And the broader workforce should be trained on the company’s anti-discrimination and anti-harassment policies.  The best trainings are live and interactive, reviewing real-life scenarios.  It is also effective to incorporate brief reminders of the employer’s non-discrimination policies into regular meetings as a way to reinforce the importance of the policy to all worksite employees.

Seyfarth at Work offers customized, interactive workplace training programs designed to ensure compliance with employment laws and mitigate legal risks. Our training services are tailored to meet specific industry needs and include practical skills development for HR professionals, managers, and employees.

Update your Policies and Ensure a Solid Reporting System

Construction employers should also ensure that they have clear, up-to date policies on discrimination and harassment. Workplace policies should define covered individuals, prohibited conduct, and reporting procedures. Policies must also commit to prompt, thorough investigations and confidentiality. Policies should be regularly updated, easy to understand, and posted in visible locations.

As for reporting, given the often complex overlap of multiple employers and entities involved in construction projects, onsite employers and leaders should collaborate to create a “no wrong door” environment for workers. That is, they should create multiple accessible channels, both formal and informal, for employees to report discrimination or harassment and policies to prevent any retaliation for such complaints. An effective harassment complaint system encourages early reporting, operates promptly and impartially, and imposes appropriate consequences for harassment or related misconduct.

To start, employers can consult the EEOC’s guide recently published in June, designed to assist construction industry leaders in reducing harassment. The guide offers recommendations on establishing clear policies, creating an accessible complaint system, and enhancing the effectiveness of anti-harassment training.

[1] Christopher Kelleher and Andrew Scroggins, EEOC Issues Anti-Harassment Guidance to Construction-Industry Employers, The Construction Seyt (June 24, 2024), available at: https://www.constructionseyt.com/2024/06/eeoc-issues-anti-harassment-guidance-to-construction-industry-employers/.

[2] Meghan A. Douris and Andrew Scroggins, The EEOC Targets Construction Industry For Heightened Enforcement, The Construction Seyt (Feb. 24, 2024), available at: https://www.seyfarth.com/news-insights/the-eeoc-targets-construction-industry-for-heightened-enforcement.html.

[3] EEOC regulations only apply to federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in government business in one year. Exec. Order No. 11246, 30 Fed. Reg. 12319 (Sept. 24, 1965).

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.

***

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.

***

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.