In yet another development in the closely watched case of Rizo v. Yovino, the en banc Ninth Circuit ruled that employers may not defeat a plaintiff’s prima facie case under the Equal Pay Act (EPA) by arguing prior pay is a “factor other than sex” within the meaning of the statute. By doing so, the Ninth Circuit reaches the same result as the previous opinion penned by the late Judge Stephen Reinhardt before his passing in 2018, including overruling Kouba v. Allstate, a prior Ninth Circuit opinion that held that prior pay could justify pay differentials in combination with other factors, and if relied upon reasonably and to effectuate a business policy. The majority opinion further holds that as a matter of statutory interpretation, a “factor other than sex” within the meaning of the EPA must be “job related,” yet it also makes clear that the EPA does not prohibit employers from considering prior pay in making starting pay offers (and in this regard differentiates the opinion from California’s salary history ban). Two separate concurring opinions agree with the result, but they criticize the majority opinion for giving too narrow a reading of the EPA’s fourth “catch all” defense and for embracing a view of prior pay that puts the Ninth Circuit at odds with other circuits and guidance from the U.S. Equal Employment Opportunity Commission (EEOC). READ MORE
As the holiday season approaches, it is a good time for employers to review their policies and take preventative measures to ensure festivities do not get out of hand at office holiday parties. The dangers of blurring the lines between professional conduct and holiday celebrations was demonstrated in a recent case out of the United States District Court for the Eastern District of California. The lawsuit alleges that following an office holiday party, a managerial employee invited several co-workers to a second location to continue celebrating. It further alleges that toward the end of the night, the manager and one of his reports ended up alone in the hotel room and the manager sexually assaulted her.
Last week, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020. The ruling is the latest in a lengthy saga regarding whether EEO-1 Component 2 pay data (data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex) would be collected—a saga that began with the Office of Management and Budget staying collection efforts, and culminated last Spring when Judge Chutkan ruled the decision to stay the collection lacked the reasoned explanation required by the Administrative Procedure Act (see overview here). After vacating the stay, Judge Chutkan initially set the deadline for data collection for May 31, 2019, but later extended it to September 30, 2019. READ MORE
In the first-of-its-kind ruling last week, the Fifth Circuit held that the EEOC’s investigators and lawyers cannot rely on its “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” to bring enforcement actions. Finding that the guidance amounted to a substantive rule, the Fifth Circuit panel determined that the guidance overstepped EEOC’s authority to force the State of Texas to consider hiring convicted felons to state-wide positions. The decision on its face confirms the general principle that EEOC does not have the authority to engage in rulemaking on substantive discrimination laws and was limited to a specific injunction. However, the decision could have far-reaching consequences for the EEOC’s various substantive guidelines. READ MORE
On June 3, 2019, the United States Supreme Court issued its decision in Fort Bend County, Texas v. Davis, resolving a circuit split regarding whether Title VII’s charge-filing requirement with the Equal Employment Opportunity Commission (“EEOC”), or equivalent state agency, is jurisdictional. The Supreme Court ruled unanimously that Title VII’s charge-filing instruction is not jurisdictional; rather, it is a procedural prescription which is mandatory if timely raised, but subject to forfeiture if tardily asserted. READ MORE
On April 22, 2019, the U.S. Supreme Court granted certiorari in a trio of employment discrimination cases for which the Court’s forthcoming rulings—expected to be published by June 2020—could ultimately settle whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity. The three cases that the high court agreed to hear are Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-1618 (filed May 25, 2018), Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018), and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al., No. 18-107 (filed July 20, 2018). The first two cases involve sexual orientation specifically, while the third case pertains to gender identity. READ MORE
The EEOC has been ordered to collect employers’ EEO-1 Component 2 pay data by September 30, 2019. The D.C. District Court issued the order after finding back in March 2019 that Office of Management and Budget (OMB’s) decision to stay the collection of Component 2 pay data lacked the reasoned explanation required by the Administrative Procedure Act. See our prior blog posts here, here, and here about National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.). Since then the court has been critical of the EEOC’s compliance with its order, and held a status conference and a hearing in March and April. READ MORE
Uncertainty continues for the EEOC’s attempt to expand the collection of employers’ pay data. Last Monday, the D.C. District Court in National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C. Mar. 4, 2019), reinstated the EEOC’s revised EEO-1 form that increases employers’ obligation to collect and submit pay data. READ MORE
As early as November 30, 2018, the U.S. Supreme Court will decide whether to hear three high profile employment cases that question whether Title VII’s ban on sex discrimination protects gay and transgender employees. These cases have significant implications on the proper scope of Title VII and the rights of the LGBT community in the workplace.
Under Title VII, an employer has engaged in “‘impermissible consideration of … sex … in employment practices’ when ‘sex … was a motivating factor for any employment practice,’ irrespective of whether the employer was also motivated by ‘other factors’.”
The Ninth Circuit recently sided with the Equal Employment Opportunity Commission (“EEOC”), holding that employers can’t require applicants to pay for follow-up post-offer medical exams. Specifically, in EEOC v. BNSF Railway Company, No. 16-35457 (9th Cir. Aug. 29, 2018), the court affirmed that BNSF Railway Company (“BNSF”) violated the Americans with Disabilities Act (“ADA”) by conditioning the plaintiff’s job offer on his getting an MRI at his own expense.