Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 49 leave for allegedly interfering with the investigation, to the extent anyone was the target of the investigation, Plaintiff herself acknowledged that this person was [a different employee] (rather than Plaintiff).” 417 Moreover, although her eventual termination indisputably qualified as an adverse action, the missing cash investigation was an intervening event between her complaints about alleged wage discrimination that broke the causal connection between that protected conduct and her termination: “evidence of temporal proximity has minimal probative value in a retaliation case where intervening events between the employee's protected conduct and the challenged employment action provide a legitimate basis for the employer's action.” 418 A closely related question that is not usually in dispute is whether protected activity occurred at all. For example, in Craven v. City of New York , 419 a plaintiff who held various position with the New York City Human Resources Administration alleged that she was repeatedly discriminated against due to her gender and her race, eventually causing her to leave her employment. The court dismissed the EPA retaliation claim because the plaintiff had failed to establish that she had complained about unequal pay with sufficient particularity to put the employer on notice that a grievance had been lodged against it: “To premise a retaliation claim on an oral complaint to her employer, a plaintiff must allege that her complaint was ‘made with a ‘degree of formality’ and that its content and context provide ‘fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of [the employer's] business concerns.’” 420 Although the court acknowledged that plaintiff alleged that she had complained about her pay and level of responsibility as compared to other employees, it concluded that “there is no indication that she was actually complaining of conduct that plausibly rises to an Equal Pay Act violation,” particularly in light of the fact that she did not mention her alleged comparator when she made those statements to her employer. 421 2. Arbitration Agreements As in many other areas of employment litigation, the existence and enforceability of arbitration agreements have become an increasingly important defense for employers. The issue before the court is usually whether the arbitration provision in question covers equal pay claims. Plaintiffs’ attempts to argue around such provisions can be quite creative, but are most often unsuccessful. For example, in Zoller v. GCA Advisors, LLC , 422 an investment banker had brought discrimination claims against her employer, including claims under the EPA. Plaintiff had signed an agreement that set her compensation and benefits, and which also included an arbitration provision that required arbitration of “[a]ny controversy or claim relating to or arising out of her employment with the Company. . . .” 423 Moreover, as an employee in the financial industry, she had signed a Form U4, which is required by the Financial Industry Regulatory Authority (“FINRA”). The Form U4 contained an arbitration provision that explicitly excluded claims alleging employment discrimination from its scope. 424 At issue was whether plaintiff had knowingly waived her right to proceed in a judicial forum. 425 The Ninth Circuit faulted the 417 Id. at *15. 418 Id. at *16 (quoting Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 1001-02 (10th Cir. 2011)). 419 Craven v. City of N.Y. , No. 19-cv-1486 (JMF), 2020 WL 2765694 (S.D.N.Y. May 28, 2020). 420 Id. at *7 (quoting Lenzi v. Systemax, Inc. , No. 14-cv-7509 (SJF), 2015 WL 6507842, at *5 (E.D.N.Y. Oct. 26, 2015)). 421 Id. (quoting Kent-Friedman v. N.Y. State Ins. Fund , No. 18-cv-4422 (VM), 2018 WL 6547053, at *2 (S.D.N.Y. Nov. 16, 2018)). 422 Zoller v. GCA Advisors, LLC , No. 20-15595, 2021 WL 1396405 (9th Cir. Apr. 14, 2021). 423 Id. at *1. 424 Id. at *2. 425 The Ninth Circuit explained that the “knowing waiver” doctrine “is our judicially created requirement that narrows the [Federal Arbitration Act’s] scope when other federal statutes explicitly limit the enforcement of arbitration agreements.” Id. at *3. Under that doctrine, a party seeking to evade arbitration may establish a congressional intent to preclude waiver of judicial resolution of certain statutory rights “which would be discoverable in the text of the statutes creating her private right of action, the respective legislative histories, or an ‘inherent conflict’ between arbitration and the statutes’ underlying purposes.” Id. (citing and quoting Gilmer v. Interstate/Johnson Lane Corp ., 500 U.S. 20, 26 (1991)). The Ninth Circuit has found such an intention in Title VII and other similar statutes, which “derives from a recognition of the importance of the federal policy of protecting the victims of discrimination.” Id. at *4. In a prior decision, the Ninth Circuit had found that financial industry employees who had signed a Form U4 could not have