A recent decision from the Department of Labor’s Administrative Review Board serves as a warning to federal agencies against overreaching in their efforts to identify alleged employment discrimination. It also serves to highlight the heavy burden that plaintiffs—whether government agencies or private litigants—must carry in cases alleging a pattern or practice of disparate treatment.
As we noted in last week’s coverage of Equal Pay Day’s twentieth anniversary, the issue of equal pay has been drawing increasing attention from regulators, legislators and plaintiffs’ attorneys nationwide. Of particular note, a report issued in January 2016 by the National Women’s Law Center highlighted the unprecedented level of new equal pay legislation at the state level. Leading this wave of activity, both New York’s Achieve Pay Equity law and California’s Fair Pay Act law have in place the broadest protections for employees seeking to bring gender-based equal pay claims. Additionally, a number of other states have adopted piecemeal legislation addressing equal pay, such as prohibiting employer retaliation based on employee discussions of wages (Connecticut, New Hampshire, Oregon), holding state contractors responsible for certifying their equal pay compliance (Delaware, Minnesota, Oregon), increasing civil penalties for equal pay violations (Illinois), or requiring employers to maintain wage records in anticipation of potential state government inquiries (North Dakota).
Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year. In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce. However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade. That said, it is still not clear that employer bias is to blame for the gap that remains. Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.
On March 16, 2016 the EEOC will be holding hearings on its proposal to expand the EEO-1 report to require employers to provide pay data. Orrick’s Gary Siniscalco was asked to address the hearing to provide employer views on this issue. Watch our Blog for ongoing developments on this issue and new developments in the equal pay area as they continue to unfold. The text of Gary’s testimony before the EEOC will be as follows:
The President released his 2017 budget this week. Budgets are aspirational documents that Congress rarely implements in full. The current acrimony between Congress and the Administration ensures that the President’s 2017 budget will likely remain aspirational. However, Presidential budgets and their accompanying justifications can shed light on an agency’s priorities.
In August 2014, the Department of Labor’s Office of Federal Contractor Programs (“OFCCP”) proposed that federal contractors report compensation information on an Equal Pay report. Amid significant contractor comments that OFCCP coordinate with the EEOC to amend the Employer Information Report (“EEO-1”), EEOC did so on January 29, 2016. The EEOC intends to ask the Office of Management and Budget to approve additional data collection that would require most employers to submit aggregate data on pay ranges and hours worked. The EEOC believes that the additional data “will assist [EEOC and OFCCP] in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.” However, questions remain whether this data would yield any meaningful analysis of actual pay differences that would assist either agency in uncovering pay discrimination.
The U.S. Department of Labor’s (“DOL”) role as a strong player in the Obama Administration’s domestic agenda shows no signs of letting up. DOL is poised to finalize big changes in the federal contracting and wage and hour spaces. Employers should be ready to meet the compliance challenges associated with these new obligations.
On the heels of the landmark decision by the Supreme Court in favor of gay marriage, the EEOC held on July 15, 2015 that sex discrimination under Title VII includes discrimination on the basis of sexual orientation. Even though the decision is not binding precedent in federal court, and runs contrary to a significant body of case law holding that Title VII does not prohibit discrimination on the basis of sexual orientation, it could be regarded by some courts as persuasive authority. The decision could also have an impact on employers in the form of an increased number of administrative charges of discrimination filed with the EEOC based on sexual orientation, as courts determine whether to adopt the EEOC’s interpretation.
On December 3, 2014, the U.S. Department of Labor (DOL) released its final rule barring federal contractors from discriminating on the basis of sexual orientation and gender identity. The final rule implements an Executive Order signed by President Obama in July 2014 amending Executive Order 11,246 to include sexual orientation and gender identity as prohibited bases of employment discrimination by federal contractors and subcontractors.
On October 10, 2014, the White House hosted a listening session regarding President Obama’s “Fair Pay and Safe Workplaces” Executive Order (discussed in detail in a prior Orrick Employment blog post here), one of many new laws imposing significant new requirements on federal contractors. Representatives of the Professional Services Council met with Secretary of Labor Tom Perez and White House officials to urge changes to the Order, which (among other things) requires prospective federal contractors and subcontractors to track and report a comprehensive list of labor and employment law violations, bars larger existing contractors from requiring pre-dispute arbitration agreements of certain claims (including claims under Title VII), and requires contractors to provide employees with additional information on overtime and hours worked in paychecks. Read More