18th Annual Workplace Class Action Report - 2022 Edition

366 Annual Workplace Class Action Litigation Report: 2022 Edition This Chapter analyzes reported class action rulings from all state jurisdictions, with an emphasis on the leading California, Delaware, Florida, Illinois, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Texas, and Washington precedents. A. Employment Discrimination Rulings (i) California Ellis, et al. v. Google , Case No. CGC-17-561299 (Sup. Ct. Cal. May 27, 2021). Plaintiffs, a group of female former employees, brought a class action alleging various claims that Defendant underpaid its female employees in violation of the California Equal Pay Act (“EPA”), Unfair Competition Law (“UCL”), and Fair Employment and Housing Act (“FEHA”). Plaintiffs alleged that Defendant systematically underpaid women and hired them at lower-level positions stemming from Defendant’s now-retired practice of asking candidates about their salary history. The Court granted Plaintiffs motion for class certification seeking to certify: (i) a class for the EPA claim and the UCL claim predicated on the equal pay theory consisting of women hired in a covered position during the class period; and (ii) a subclass consisting of the UCL claim predicated on the FEHA, which excluded campus hires and women hired after 2017. First, the Court found that the proposed class and subclass were ascertainable. Likewise, the Court found that numerosity was easily satisfied because the class consisted of more than 10,800 women while the subclass consisted of more than 6,600 women. As to the EPA claims, the Court found that whether persons in the same job code performed substantially similar work was a common question that could be resolved by common evidence. In so ruling, the Court rejected Defendant’s argument that employees with the same job code were not necessarily performing substantially similar work. The Court opined that for work to be considered substantially similar under the EPA, the work did not need to be exactly the same. Moreover ,the Court also found that whether women were paid less than men in same job codes presented predominant common questions. As to the UCL claims, the Court held that common questions were presented as to Defendant’s pattern or practice of assigning women lower salaries based upon prior pay, which had a disparate impact on women because women had lower prior pay. As to typicality, the Court noted that this requirement was satisfied because the named Plaintiffs were paid less than men with the same job codes. Furthermore, as to the adequacy requirement, the Court found that there was no conflict that made the named Plaintiffs inadequate. Moreover, adequacy was also met because Plaintiffs’ counsel had prior experience litigating federal and state class actions. Finally, the Court ruled that a class action was the superior method for adjudicating the claims because the claims could be tried through common evidence. The Court explained that it would be more efficient to adjudicate the allegations in a single proceeding rather than in separate individual trials, which would be wasteful and redundant. For these reasons, the Court granted Plaintiffs’ motion for class certification. Jewett, et al. v. Oracle America Inc ., Case No. 17-CIV-2669 (Cal. Super. Ct. April 26, 2021) . Plaintiffs, a group of employees of Oracle, filed a class action alleging that Defendant underpaid women for doing the same work as their male peers in violation of the California Equal Pay Act. The Court previously had granted Plaintiffs’ motion for class certification. Following discovery, Defendant filed a motion for summary judgment, and the Court denied the motion. In support of their motion for class certification, Plaintiffs had relied on expert reports by an economist and statistician that used a regression analysis to show that women made roughly $13,000 less annually than men within the same job code. Plaintiffs contended that that this pay disparity arose from Defendant’s use of prior salary history at jobs before Defendant set starting salaries for its workers, a practice the California legislature has found perpetuates historical pay discrimination. Plaintiffs also relied on the expert report of an industrial organizational psychologist, which concluded that women with the same job codes as men performed the same or substantially similar work. In moving for summary judgment, Defendant argued that Plaintiffs could not rely on the statistical modeling as a matter of law where Plaintiffs had not identified specific comparators. Defendant further asserted that bona fide factors justified any pay differentials. The Court disagreed with Defendant’s position. It found that Plaintiffs each identified specific male comparators. Defendant also asserted that the alleged comparators did not perform substantially equal or substantially similar jobs to Plaintiffs. The Court explained that although Plaintiffs would have the burden at trial to prove a prima facie claim, at the summary judgment stage, that burden was on Defendant, and it failed to meet its burden. Further, the Court reasoned that Defendant failed to address the implications of dozens of male employees who shared a job title of code with Plaintiffs, or provide any evidence that Plaintiffs could not prove that the men performed