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Pick Your Procedure: EEOC Launches Parallel Gender Discrimination Pay Suits Under Different Statutes

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.

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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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Massachusetts Signs Into Law Far Reaching Pay Equity Bill

On August 1, 2016, Governor Charlie Baker signed into law a pay equity bill which the Massachusetts Legislature passed by unanimous vote on July 23, 2016. The pay equity act is one of the strongest and most unique in the nation.  Chief among the unique features is the prohibition on the use of prior salary in setting compensation and an affirmative defense for employers who conduct pay audits.  The legislation differs from the federal Equal Pay Act (EPA) and other recent state pay equity laws, including California and Maryland, in several ways.

Comparable Work Presents a Broader Standard

The EPA requires that men and women in the same workplace receive equal pay for “equal work.” “Equal work” means their jobs need not be identical, but “substantially equal.”  The newly passed Massachusetts legislation only requires “comparable work,” meaning work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.  Thus, the legislation will give employees a larger pool of “comparator jobs” to point to should they feel underpaid in relation to their gender opposites.  In fact, the “comparable work” standard appears to be similar to the broader-based standard used in pay-disparity claims under Title VII, except that Title VII also requires proof of intent.  Recent Maryland and California laws also expand the pool of comparators. READ MORE

Employers Left Hanging Again: Coates v. Farmers Reaches Settlement & Still No Answers on Interpreting California’s Fair Pay Act

What many were hoping would bring clarity to California’s Fair Pay Act, further left employers in the dark on how to interpret the Act.

On April 29, 2015, Plaintiff Lynne Coates filed a class action lawsuit against Farmers alleging gender discrimination claims under Title VII and California’s Fair Employment and Housing Act, as well as violations of the federal and California equal pay acts and California’s Private Attorneys General Act.  Coates claimed that Farmers systematically discriminated against female attorney employees and that its “common compensation and promotion policies and practices resulted in lower pay and unequal promotions for female attorneys.”

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Equal Pay Day 2016:  Where Are We 20 Years Later?

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.

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California DLSE Posts FAQs on New Fair Pay Law but Leaves Tough Questions Unanswered

Three months after the California Fair Pay Act took effect on January 1, 2016, the California Division of Labor Standards Enforcement (“DLSE”) has issued answers to FAQs about the new law, which by all counts is the most employee-friendly equal pay law in the nation.  But for California employers who anxiously have been awaiting official guidance on the Act’s many new terms and standards, the FAQs provide little satisfaction.  Rather, they focus more on informing employees on how to bring a claim.  Nor has the DLSE otherwise spoken publicly about how it plans to enforce the new law; instead, the agency appears to be taking its time and exercising caution as it potentially sets the stage for the rest of the nation.

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Orrick to Provide Testimony on EEOC’s Proposed Revisions to the EEO-1 Report

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:

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DOL and EEOC to Make 2016 A Challenging Year for Employers

Members of the Fair Labor Standards Legislation Committee of the American Bar Association’s Section of Labor and Employment Law recently met.  The meeting includes employer and employee advocates, as well as government officials.  The meeting often highlights not only the present status of regulations, policy and pending litigation but also provides a window into coming trends that may be important for employers.  We highlight a few takeaways.

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