Equal Pay Act

Teachable Moment on Equal Pay Act and Title VII as Fourth Circuit Rejects Claim that Professors Perform “Equal” or “Similar” Work

The Fourth Circuit recently issued a decision discussing whether a university professor established pay-related claims under the Equal Pay Act and Title VII.  This case has important implications for professional occupations where complainants seek to compare themselves to their colleagues for purposes of alleging pay discrimination.

Zoe Spencer, a sociology professor at Virginia State University (“VSU”), sued her employer for allegedly paying her less than two male professors because she is a woman.  The district court granted summary judgment, and plaintiff appealed to the Fourth Circuit.  The Fourth Circuit affirmed the district court’s decision because (1) plaintiff failed to present evidence that creates a genuine issue of material fact that the two male professors are appropriate comparators; and (2) in any event, unrebutted evidence shows that the VSU based the two male professors’ higher pay on their prior service as VSU administrators, not their sex.

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“Judges Are Appointed For Life, Not For Eternity”: SCOTUS Rules That Judge’s Vote in Equal Pay Case Does Not Count Due To Judge’s Passing

In April 2018, an en banc Ninth Circuit held in Rizo v. Yovino that an employer cannot justify a wage differential between male and female employees under the Equal Pay Act by relying on prior salary. Before the Ninth Circuit published its decision, though, Judge Stephen Reinhardt passed away. On February 25th, the U.S. Supreme Court vacated the Ninth Circuit’s decision, reasoning that the appellate court should not have counted Reinhardt’s vote because he passed away before the decision was issued. Instead, the Ninth Circuit should not have released the opinion. READ MORE

Say It Again: No Common Question Binds a Class Subject to Thousands of Individualized Pay Decisions

Echoing an increasingly familiar refrain, another district court has declined to certify a class of women bringing pay equity claims on the basis that they did not present a common question capable of producing a common answer to “the crucial question why was I disfavored.” Relying largely upon Wal-Mart Stores, Inc. v. Dukes, the court found certification inappropriate because the putative class members were subject to countless independent decisions involving the judgment and discretion of individual managers. The case also serves as another reminder that courts (including California state courts) will not accept an overly simplistic analysis comparing broad job categories or titles, but will continue to look at actual business practices and job responsibilities to ensure comparators are “similarly situated” so a meaningful pay comparison can be made. READ MORE

Tech Giants Continue To Face The Equal Pay Litigation Spotlight

In recent years, the volume of equal pay lawsuits has continued to increase in Silicon Valley, despite technology companies reaffirming their commitment to equal pay policies and practices. Earlier this month, Hewlett Packard Enterprise Co. (“HP”) was hit with the latest equal pay lawsuit. The class action lawsuit, filed in Santa Clara Superior Court, alleges that HP discriminated against its female workers by paying them less than their male counterparts and funneling women into certain jobs based on stereotypes. READ MORE

Business Groups Urge U.S. Supreme Court to Review Ninth Circuit Decision Rejecting Use of Prior Salary to Set Pay

In the wake of the Ninth Circuit’s decision in Rizo v. Yovino, key employer-side groups have expressed support for U.S. Supreme Court review to determine whether employers who rely on prior salary to set starting pay can continue to do so consistent with the federal Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”). READ MORE

The Coast is Clear: California Bill That Would Mandate Pay Data Reporting Dies in Committee

This summer, California pay data reporting bill SB 1284 appeared to be progressing quickly through the legislature, until it was tabled by the Assembly Appropriations Committee on August 16, 2018.  The bill, which we reported on earlier this year, would have required employers with 100 or more employees to annually report pay data from employees’ W-2 forms for specified job types and pay bands, broken down by sex, race, and ethnicity.  The bill passed the Senate, and was working its way through the Assembly, where it was amended earlier this month.  READ MORE

The Coast is Not (Necessarily) Clear: California Seeks to Mandate Pay Data Reporting Modeled on Revised EEO-1 Form Stayed by OMB

This month, the California Senate held a hearing regarding SB 1284, which would require California employers with at least 100 employees to annually report certain demographic pay data to the Department of Industrial Relations (DIR). Notably, this bill was sponsored by Senator Hannah-Beth Jackson, who also sponsored California’s Fair Pay Act (FPA) (on which we previously reported here, here, here, and here). It was also introduced just a few short months after the Office of Management and Budget’s memo mandating a review and immediate stay of similar reporting requirements at the federal level for the Equal Employment Opportunity Commission (EEOC)’s revised EEO-1 form. The California Senate Judiciary Committee has explained that SB 1284 is “modeled closely” on the revised EEO-1 form. As a result, it suffers from similar flaws. READ MORE

En Banc Ninth Circuit Throws In Its Two Cents Regarding Use of Prior Salary Information To Justify Pay Differentials

Last year, we covered a Ninth Circuit panel decision which concluded that an employer may rely on prior salary information as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” An en banc Ninth Circuit has now reversed the panel’s prior opinion. READ MORE

Germany: Equal Pay Act Adopted by Federal Cabinet

On January 11, 2017, the German Federal Cabinet has adopted the Equal Pay Act (Entgelttransparenzgesetz) submitted by the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth.

As we reported, the requirements of the Equal Pay Act as now adopted have been lessened in comparison with the preliminary ministerial draft we initially reported on, in accordance with the agreement found by the coalition committee of the German government parties.

Still, the Federal Minister for Family Affairs, Senior Citizens, Women and Youth declared the adoption of the Equal Pay Act an important breakthrough for a fair payment of women. She announced that the individual right to information, the reporting obligation and review procedure can be expected to change corporate culture in Germany.

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Equal Pay Light? – Update on Proposed German Equal Pay Act

People Walking

On October 6, 2016, the coalition committee of the German government parties agreed on the planned Equal Pay Act (Entgeltgleichheitsgesetz). We described the first draft of the Equal Pay Act submitted by the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth in our blog post earlier this year.

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