©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 37 C Ensuring Equal Pay Protections For All Workers Equal pay issues seem to be everywhere these days, and EEOC litigation is no exception. Although the actual number of equal pay case filings decreased under the short tenure of the EEOC’s Trump-appointed leadership, it never stopped being a top strategic priority for the agency. Since 2012, the EEOC’s Strategic Enforcement Plan has included a focus on compensation systems and practices that discriminate based on sex under the Equal Pay Act (“EPA”) and Title VII.71 The EPA prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which [it] pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions… .” 72 Title VII prohibits a broader range of discrimination, including wage discrimination on the basis of sex or other protected groups.73 The EEOC has made use of both statutes to combat sex-based wage discrimination. The relative dearth of new filings over the past few years has led to a decline in legal decisions: i.e., fewer equal pay cases winding their way through the courts means fewer opportunities for courts to opine on equal pay issues involving the EEOC. In FY 2022, there were only 2 new cases filed by the EEOC that asserted claims under the EPA.74 And the only substantive EEOC equal pay decision in 2022 involved a discovery dispute arising out of the long-running case, EEOC v. George Washington University.75 But it was an important decision, and one that every employer dealing with equal pay issues should be familiar with. In that case, an Executive Assistant to the employer’s former Athletic Director alleged that she was paid less than a male “Special Assistant” for the same work.76 She filed an internal grievance with the employer’s EEO office and a charge with the EEOC. The employer initiated an internal investigation to review the matter, which was initially conducted by non-lawyer staff in the EEO office. The investigation was later handed over to a law firm, which then issued a Confidential Informal Grievance Report.77 In discovery, the EEOC requested all documents relating to that investigation. The employer withheld all documents except the grievance itself under the auspices of attorney-client privilege and the work product doctrine, arguing that the investigation was done at the behest of the University’s Office of General Counsel and, later, the law firm that conducted the investigation. The EEOC argued that the employer’s assertion of a good faith defense to the EEOC’s claim for punitive damages put its subjective intentions at issue, thereby waiving privilege over those documents. The employer disagreed, arguing that its good-faith defense did not waive any privilege because it has disclaimed an intent to rely on the conclusions or advice of counsel in the internal investigation to support that defense.78 The court first had to decide whether the subject materials were privileged at all, given that some of them were created by someone in the EEO office who, while an attorney, was not acting as counsel for the employer with respect to the investigation. The court held that those materials were privileged because that person had contacted the employer’s Office of General Counsel within days of receiving the grievance, after determining that litigation was likely.79 She then received guidance from the employer’s in-house lawyers respecting the conduct of the investigation and reported back to them and discussed her findings with them. Under those 71 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, www.eeoc.gov/eeoc/plan/sep-2017.cfm. 72 29 U.S.C. § 206(d). The law recognizes four exceptions where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. Id. However, an employer is prohibited from reducing the wage rate of any employee to comply with the law. Id. 73 Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” or “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,” because of such individual’s sex. See 42 U.S.C. § 2000e-2(a)(1)-(2). 74 EEOC v. Lacey’s Place, 2:22-cv-2161 (C.D. Ill.); EEOC v. Univ. of Texas Permian Basin, 7:22-cv-210 (W.D. Tex.). 75 EEOC v. George Washington Univ., 342 F.R.D. 161 (D.D.C. 2022). 76 Id. at 166. 77 Id. 78 Id. at 167. 79 Id. at 179.
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