©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 15 they performed equal work. The court found, however, that the core job duties were the same, relying in part on evidence that the positions shared the same job description, and supervisors often substituted for one another on a short- or long-term basis without requiring any additional training and without any alteration in pay.51 The differences among library branches did not defeat the EEOC’s case because “none of th[ose] differences translated into job duties that differed significantly from one another.” 52 The EEOC has also been pushing the law in a more employee-friendly direction with respect to an employer’s affirmative defenses. For example, in EEOC v. Hunter-Tannersville Central School District,53 the employer had pled as an affirmative defense that the charging party and her comparator had each negotiated their salaries, and that those negotiations resulted in the alleged salary disparity.54 The EEOC argued that “there is simply no basis for the proposition that a male comparator’s ability to negotiate a higher salary is a legitimate business-related justification to pay a woman less.” 55 The court rejected this argument, but noted that other courts had come to different conclusions as to whether salary negotiations, by themselves, could constitute a valid defense to an EPA claim. Given the unsettled nature of the law, the court was unwilling to adopt the EEOC’s interpretation at the pleading stage: “The Court finds that the EEOC did not meet its burden to show that the affirmative defense is insufficient because there is a question of law, specifically whether Aldrich’s job-relatedness requirement would apply to negotiations, which might allow the defense to succeed.” Finally, recent EEOC litigation has generated some important and noteworthy decisions for employers who undertake the investigation and remediation of equal pay issues upon themselves. For example, in EEOC v. George Washington University,56 an Executive Assistant to the employer’s former Athletic Director alleged she was paid less than a male “Special Assistant” for the same work.57 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.58 In discovery, the EEOC requested all documents relating to that investigation. But 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. Some of those documents were created by someone in the EEO office who, while an attorney, was not acting as counsel for the employer. 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, and had received guidance from the employer’s in-house lawyers respecting the conduct of the investigation.59 The EEOC also argued that the employer’s assertion of a good faith defense to the EEOC’s claim for punitive damages worked as a waiver of the privilege over those documents. According to the EEOC, the assertion of that defense puts an employer’s state of mind at issue, and in particular, its intent and knowledge of the law. The court held that “a party that has interposed a good faith defense but disclaimed reliance on privileged or protected materials—such as those created in connection with an internal investigation—does not waive protection over those materials.” 60 Because the evidence of the employer’s good faith was unconnected to its internal investigation, the court held that the privilege had not been waived: “the [employer’s good faith] defense relies on evidence that the hiring and compensation decisions at issue here were made in a good faith 51 Id. at *9. 52 Id. (emphasis in original). 53 EEOC v. Hunter-Tannersville Cent. Sch. Dist., No. 1:21-cv-0352, 2021 WL 5711995 (N.D.N.Y. Dec. 2, 2021). 54 Id. at *3. 55 Id. at *2. 56 EEOC v. George Washington Univ., 342 F.R.D. 161 (D.D.C. 2022). 57 Id. at 166. 58 Id. 59 Id. at 179. 60 Id. at 187.
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