12 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP B EEOC Focus on Equal Pay Protections The EEOC is the federal government’s most powerful agency for the enforcement of federal anti-discrimination laws in the workplace. Authorized by Congress to wield broad investigative and subpoena powers for the prevention and remediation of unlawful employment practices, the EEOC’s enforcement mechanisms cover a range of activities, from individual and systemic claims investigations, conciliation, litigation and monitoring compliance, to serving as an agent for effecting broader policy change in employment sectors throughout the country. Each iteration of the EEOC’s Strategic Enforcement Plan has included a focus on advancing equal pay for all workers.21 The number of EEOC lawsuits alleging equal pay violations has dropped significantly over the past few years, most likely due to the previous Republican-led EEOC leadership, for whom this was not a top priority. This has led to a decline in legal decisions relating to equal pay issues, at least those involving the EEOC as a party. Equal pay litigation, itself—apart from the EEOC’s involvement – continues apace. And the EEOC has been actively attempting to steer the results, even if not as a party plaintiff. For example, in September 2023, the EEOC filed an amicus brief in favor of reversal of the United States District Court for the Middle District of Alabama’s decision in Williams v. Alabama State University.22 In that case, a female Athletic Director of a university alleged she was underpaid compared to her male successor in the same position. Before the university hired her, the plaintiff had earned a Master’s Degree in Athletic Administration and worked for two other Division I schools. When plaintiff was hired in 2018, she was given a $135,000 salary with performance incentives. When she asked for a raise the following year, the university denied her request and gave her a one-time $5,000 signing bonus.23 Williams resigned in 2021, and the university posted the Athletic Director position again, modifying the education and experience requirements. On education, the posting required “a master’s degree, preferably in sports management or sports administration, an MBA or terminal degree.” On experience, the posting required “at least seven to ten years of experience in major leadership posts in sports administration and management.” 24 The university hired a male who had a Master’s Degree in Secondary Education and a PhD in Higher Education Administration. He had never been an athletic director before. But he requested and received a starting salary of $170,000 along with performance incentives.25 Nevertheless, the District Court granted the university’s motion for summary judgment on plaintiff’s EPA claim. The court held (1) that the university had met its burden on the affirmative defense because the evidence demonstrates that it could have legitimately relied on her successor’s higher degree and greater relevant experience to set his higher salary;26 and (2) that plaintiff had not proven pretext because she failed to produce evidence that directly establishes discrimination, or which would permit a jury to reasonably disbelieve the employer’s proffered reason.27 The matter was appealed to the Eleventh Circuit, where the EEOC filed an amicus brief urging its interpretation of the burden shifting framework under the EPA.28 According to the EEOC, the EPA’s framework is as follows: (1) the plaintiff must establish a prima facie case; (2) the defendant must then prove an affirmative defense that, in fact, caused the difference in pay in order to avoid liability. According to the EEOC, under the EPA, the burden never shifts back to the plaintiff to prove pretext. 29 21 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2024 - 2028, Strategic Enforcement Plan Fiscal Years 2024 - 2028 | U.S. Equal Employment Opportunity Commission (eeoc.gov). 22 Williams v. Ala. State Univ., No. 2:22-cv-48-ECM, 2023 WL 4632386 (M.D. Ala. July 19, 2023). 23 Id. at *2. 24 Id. 25 Id. at *3. 26 Id. at *4. 27 Id. at *7. 28 See Br. of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, Williams v. Ala. State Univ., No. 23-12692 (filed Sept. 29, 2023). 29 Id. at 10-13.
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