©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 28 27 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP comparator] had received during his first tenure at [employer]. Given these facts, combined with the inherent discretion within the MAPS policy, genuine factual questions exist about how defendants arrived at [the comparator’s] salary.” 57 After the conclusion of a five-day bench trial, the court concluded that the employer had violated the EPA.58 The EEOC easily met its burden to establish a prima facie case because the parties stipulated that the comparator’s salary was higher than that of each charging party.59 To carry its burden, the employer argued that each library branch differed with respect to circulation size, outreach efforts, and physical footprint, thus rendering the job duties of each library supervisor too dissimilar to support a finding that 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.60 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.” 61 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,62 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.63 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.” 64 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,65 an Executive Assistant to the employer’s former Athletic Director alleged she was paid less than a male “Special Assistant” for the same work.66 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.67 57 Id. at *7. See also EEOC v. George Washington Univ., No. 17-cv-1978, 2019 WL 2028398, at *4 (D.D.C. May 8, 2019) (denying an employer’s motion to dismiss even though the complaint at issue did not explicitly allege how the positions at issue were equal with respect to skill, effort, and responsibility, holding that the complaint “straightforwardly pleads that [plaintiff] was paid less as Executive Assistant than [comparator] was paid as a Special Assistant for substantially the same job responsibilities”); EEOC v. Univ. of Miami, No. 19-cv-23131-Civ-Scola, 2019 WL 6497888, at *2 (S.D. Fla. Dec. 3, 2019) (denying a motion to dismiss claims brought by professors in the same department because the EEOC had supported its claims of pay discrimination with numerous allegations relating to the professors’ job duties, such as teaching classes and publishing books and articles, and allegations that the female professor had two more years of teaching experience and had published more works, and because the EEOC had alleged that both professors were in the same department and had been promoted to full professor at the same time after a review by the same committee based on the same criteria); EEOC v. Denton Cty., No. 4:17-cv-614, 2018 U.S. Dist. LEXIS 175794, at *22 (E.D. Tex. Oct. 12, 2018) (denying cross motions for summary judgment, holding that it was “not convinced that [defendant] or the EEOC has met their respective burdens demonstrating that there is no material issue of fact as to the EEOC’s claim for violation of the Equal Pay Act entitling it to judgment as a matter of law”). 58 EEOC v. Enoch Pratt Free Library, No. 8:17-cv-2860, 2020 WL 7640845 (D. Md. Dec. 23, 2020). 59 Id. at *8. 60 Id. at *9. 61 Id. (emphasis in original). 62 EEOC v. Hunter-Tannersville Cent. Sch. Dist., No. 1:21-cv-0352, 2021 WL 5711995 (N.D.N.Y. Dec. 2, 2021). 63 Id. at *3 64 Id. at *2. 65 EEOC v. George Washington Univ., 342 F.R.D. 161 (D.D.C. 2022). 66 Id. at 166. 67 Id. The EEOC demanded 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.68 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.” 69 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 effort to comply with the law. Importantly, all those decisions predate the internal investigation because ‘the [employer] already had hired [comparator] as Special Assistant and already had determined his and [charging party’s] pay at the time that the Internal Investigation began.’” As noted above, the EEOC’s enforcement of equal pay issues has dwindled in recent years. However, employers should be mindful of EEOC-driven litigation in this area and, where appropriate, conduct a privileged audit of their pay practices to prevent potential liability. C Preventing Discrimination In Recruiting 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. Much of its enforcement activity has historically 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 in carrying out the screening process can result in discrimination against certain groups of individuals. In 2025, employers should expect the EEOC to continue its strategic efforts to develop and file litigation alleging discrimination in recruitment and hiring. This broad SEP category has now been in place since FY 2017, with the most recent updates reflecting the EEOC’s ongoing bipartisan warnings to employers and human resources technology vendors about the potential discriminatory impacts of AI in hiring. While the issues created by AI continue to hold the spotlight, we believe that the EEOC’s strategic emphasis and litigation efforts in 2025 will be broader and touch on multiple aspects of hiring and recruiting. 1 Artificial Intelligence and Technology in Recruiting and Hiring Use of artificial intelligence has entered the mainstream, and the application of these tools in the workplace has become increasingly common. Employers now routinely use artificial intelligence to streamline hiring and recruiting. Prior versions of the SEP announced the EEOC’s focus on recruitment and hiring practices and policies that might give rise to discrimination against members of racial, ethnic, and religious groups, as well as women, older workers, and those with disabilities. In the current SEP, the EEOC added far more detail about the types of hiring practices and policies that it intends to scrutinize, and specifically noted that 68 Id. at 179. 69 d. at 187.
RkJQdWJsaXNoZXIy OTkwMTQ4