On Tuesday, May 12, 2020, the Ninth Circuit heard oral argument in Freyd v. University of Oregon. Jennifer Freyd, a professor of Psychology at the University of Oregon, filed a class action lawsuit in March 2017 alleging gender-based pay differences in violation of the Equal Pay Act, Title VII, and other statutes. Freyd asserted that the University paid her less than four male colleagues in her department and that the University’s retention award policy had a disproportionate impact on the University’s female psychology professors. In May 2019, the District Court granted Defendants’ motions for summary judgment, and Freyd subsequently appealed the decision to the Ninth Circuit Court of Appeals. READ MORE
A California district court dealt a blow to the U.S. Women’s National Team’s (WNT) equal pay case on May 1, granting partial summary judgment to the United States Soccer Federation (USSF) in the headline-grabbing case filed last year. The decision dismisses the team’s compensation discrimination claims under both the Equal Pay Act (EPA) and Title VII but mostly leaves intact the WNT’s remaining discriminatory working conditions claims. We previously blogged about the case here.
On March 6, 2020, U.S. Secretary of Labor Eugene Scalia published Secretary’s Order 01-2020, which is among the first of his management decisions since his confirmation back in September. The Order, titled the “Delegation of Authority and Assignment of Responsibility to the Administrative Review Board,” establishes the Secretary’s authority to review, at his discretion, decisions of the Department of Labor (DOL)’s Administrative Review Board (ARB), including decisions arising out of enforcement actions brought by the Office of Federal Contract Compliance Programs (OFCCP). The Order represents a shift in procedure before the Office of Administrative Law Judges (OALJ) and introduces various new process and substantive legal questions to be aware of in connection with contractor pay discrimination enforcement actions. READ MORE
On February 6, 2020 the U.S. Court of Appeals for the Third Circuit upheld a Philadelphia pay equity ordinance banning employers from inquiring into prospective employees’ prior pay or relying on prior pay in making compensation decisions unless candidates knowingly and willingly disclose the information. In upholding the ordinance, the Third Circuit vacated a lower court decision that enjoined enforcement of the inquiry provision on the grounds that it violated employers’ First Amendment free speech rights. While the Third Circuit acknowledged that the ordinance implicated First Amendment rights, the court found that there was “a plethora of evidence” provided by the city to meet its burden of clearing intermediate scrutiny for commercial speech. Consequently, it was reasonable for the city to conclude that the inquiry provision would address gender and race-based wage gaps based on experiments, witness testimony, and historical research concluding as much. READ MORE
The Second Circuit ruled this month in Lenzi v. Systemax, Inc. that “Title VII does not require a showing of unequal pay for equal work.” Drawing a line between the Equal Pay Act (“EPA”) and Title VII, the court held that “all Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.’”
The EEOC’s revised pay-data collection rule is back in force and the September 30, 2019 deadline is at our doorstep. Here is a quick overview of what employers should know and links to available resources. READ MORE
This year has seen states enact a litany of laws aimed at addressing pay equity issues, chief among them salary history bans. We previously reported on these issues here, here, and here. Mid-way through 2019, more and more states continue moving full speed ahead with legislation to bar employers from asking about candidates’ prior salary during the hiring process. Since our last report on this topic, the latest newcomers in this area are Washington and New Jersey. These states (like others) have expressly justified these bans based on legislative findings that “[t]he long-held business practice of inquiring about salary history has contributed to persistent earning inequalities” (see H.B. 1696, § 3(a), 66th Leg., Reg. Sess. (Wash. 2019) (enacted)), while courts evaluating such provisions have found that “more is needed” to establish the presumed connection. See Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, 319 F. Supp. 3d 773, 797-98 (E.D. Pa. 2018). Regardless, though, these laws are now on the books and employers should be mindful of their requirements going forward. READ MORE
For nearly five years, major U.S. corporations have been subject to intense scrutiny over their decisions on whether to release internal pay gap percentages in response to shareholder proposals by Arjuna Capital, LLC and other activist shareholder groups. As these activist groups maintain a keen interest in seeking compensation-related disclosures from industry giants, employers should be mindful of certain issues in considering their response. READ MORE
As part of a marathon finish to the 2019 legislative session, the New York State legislature recently passed two new equal pay bills that build on other state and local laws enacted within recent years. The first of the two bills, Senate Bill No. S5248A, broadens the scope of § 194 of the New York Labor Law (“NYLL”) to establish prohibitions on compensation discrimination between employees performing work that is “substantially similar,” and by prohibiting compensation discrimination on the basis of any protected status or classification under the New York State Human Rights Law (“NYSHRL”). The second bill, Senate Bill No. S6549, establishes a broad proscription on salary history inquiries during the recruitment and hiring process. Together, the bills cement New York’s pay equity regime as among the strongest in the country and introduce new compliance challenges and questions in analyzing employee compensation. READ MORE
The EEOC has been no stranger to headlines in recent months, particularly on the issue of equal pay. As we recently reported, the EEOC’s long-dormant pay data collection rule, revived by the D.C. District Court in March, has caused an uproar of speculation as employers race to comply with increased data reporting requirements for their annual EEO-1 forms by September 30, 2019. But the EEOC is also busy addressing pay issues in court.