40 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP The court also rejected the employer’s affirmative defense, holding that the evidence simply did not support the employer’s claim that the comparator was hired at a higher salary because he was able to negotiate a higher salary on the strength of his superior qualifications. According to the court, there was no evidence that the comparator had ever negotiated his salary.102 The MAPS salary system also did not support the employer’s defense because, although that system permitted a salary adjustment, it does not alone independently justify paying a male employee a higher wage for performing the same work.103 The employer’s own HR guidance actually cautioned city agencies to be careful when setting starting salaries to the MAPS midpoint in order to avoid “internal equity issues.” 104 Yet the employer had not been able to show that the employer had ever compared salaries to avoid those equity issues, and even failed to do so even after one of the charging party’s had complained about the disparity.105 The employer’s failure to act on that complaint also led the court to reject the employer’s claim that it had acted in good faith, meaning that the court awarded the charging parties liquidated damages on top of their actual damages.106 The court concluded that “implementation of a public pay system alone cannot justify pay disparity in the absence of any other justification,” and that “mere reliance on MAPS in combination with the record evidence, does not establish that [comparator] was hired based on a factor other than sex.” 107 D Preventing Discrimination In Recruitment And Hiring Over the past decade, the EEOC has spent a considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring.108 Most of its recent enforcement activity has focused on combating hiring practices that could result in age discrimination. But recent years have evidenced a broadening of that focus to claims ranging from sex discrimination, race discrimination, and disability discrimination. In particular, the EEOC has scrutinized how pre-employment screening tests and the use of technology of carrying out the screening process can result in discrimination against certain groups of individuals. 1 Recent Judicial Decisions Involving Discrimination Resulting From Pre-Employment Screening Tests The EEOC’s efforts to eliminate potential discrimination that is delivered through the use of pre-employment screening tests has a long history. Those cases have decreased in popularity as the EEOC has focused its attention on other ways that employers might inevitably erect barriers to recruitment and hiring of certain groups. But the rise of third-party firms who offer assistance to employers in making employee selections could give rise to a new wave of these types of lawsuits. Employers who use such services must be certain that the methods they use are suited for their purpose and have been properly vetted for disparate impact. An employer who fails to independently verify the methodologies used by these firms run the risk of incurring discrimination charges against themselves. For example, in EEOC v. Stan Koch & Sons Trucking, Inc.,109 the U.S. District Court for the District of Minnesota granted summary judgment on liability for the EEOC and against an employer who relied on a physical abilities test to select employees for truck driver positions. The EEOC alleged that the physical abilities test had a discriminatory impact on female drivers.110 The employer required new employees to pass a physical abilities test, called the “CRT test,” during orientation. If they failed, their employment 102 Id. at *10. 103 Id. 104 Id. 105 Id. 106 Id. 107 Id. at *11. 108 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, at 6-9 (identifying the elimination of barriers in recruitment and hiring as one the EEOC’s national priorities, and stating that “[t]he EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities”). 109 EEOC v. Stan Koch & Sons Trucking, Inc., No. 19-CV-2148 , 2021 WL 3910001 (D. Minn. Aug. 30, 2021). 110 Id. at *1.
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