18th Annual Workplace Class Action Report - 2022 Edition

52 Annual Workplace Class Action Litigation Report: 2022 Edition than sex, as permitted by 29 U.S.C. § 206(d)(1)(iv)," and the "other than sex" factor was the ability to negotiate a higher salary. Id . at *2. The Court denied the motion to strike. The Court explained that in order to prove violation of the EPA, the EEOC must establish a prima facie case by satisfying three elements, including: "(i) the employer pays different wages to employees of the opposite sex; (ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (iii) the jobs are performed under similar work conditions." Id . at *4. If the EEOC can establish these three elements, the burden then shifts to the employer to offer a reason as to why the compensation differs, which it can do by showing that the difference in compensation results from: "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." Id . at *5. The EEOC contended that Defendant’s affirmative defense was legally insufficient because contract negotiations were not “related to the performance of the Superintendent job." Id . Defendant argued that the affirmative defense was legally sufficient because neither the U.S. Supreme Court nor the Second Circuit have ever held that negotiation was not a "factor other than sex" that an employer could rely upon to defend against an EPA claim. Id . at *6. Further, Defendant pointed to the fact that there were at least two circuit courts and multiple federal district courts that have specifically held that “negotiation issues” was a valid defense. Id . The EEOC responded that decisions outside of the Second Circuit did not require that a "factor other than sex" be "job-related," and no circuit case law authority previously had held that negotiations were a job-related factor that would justify a pay disparity under the EPA. Id . The Court opined that at this early stage in the proceedings, it was not convinced that only job-related factors could constitute a "factor other than sex." Id . The Court reasoned that the EEOC did not meet its burden to show that Defendant’s affirmative defense was insufficient because there was a question of law, specifically whether the job-relatedness requirement would apply to negotiations, which might provide success on the merits to Defendant. For these reasons, the Court denied the EEOC’s motion to strike the affirmative defenses. EEOC v. International Association Of Bridge Structural And Ornamental Ironworkers Local 580, Case No. 71-CV-2877 (S.D.N.Y. Jan. 5, 2021). The EEOC brought an enforcement action against the union and the state apprenticeship program, alleging that the program discriminated against Black and Hispanic employees on the basis of their race in violation of Title VII of the Civil Rights Act. The parties ultimately settled the matter after decades of litigation. The Special Master assigned to the action recommended that the parties’ consent decree be denied. The EEOC’s initial claims were resolved with a 1978 consent decree, but the Court subsequently issued three additional contempt orders since after finding in which it determined that Defendants were not in compliance with the consent decree. The parties submitted their joint consent decree to the Court and proposed ending the Special Master’s involvement. The Special Master found that the consent decree included only "vague and unsupported claims" and no evidence that would justify ending the Court’s role in the dispute. Id . at 4. Further, the Special Master determined that the proposed consent decree would prevent Black and Hispanic members from suing to recover back pay based on allegations that the discrimination led to lost job opportunities. The Special Master opined that the underlying reason for the consent decree was to afford Black and Hispanic members work opportunities equivalent to Local 580’s non-minority counterparts. The Special Master observed that as to that objective, Defendants submitted no evidence of compliance, and the EEOC simply provided conclusory statements that Defendants had provided equal employment opportunities to Local 580’s Black and Hispanic members. The Special Master concluded that without proper data included to analyze the compliance with the consent decree, public interest weighed in favor of denial. For these reasons, the Special Master recommended that the proposed joint consent decree be denied. Editor ’ s Note: This ruling likely involved the longest running EEOC enforcement action in the country, as the case began in 1971. EEOC v. International Association Of Bridge Structural And Ornamental Ironworkers Local 580, 2021 U.S. Dist. LEXIS 239816 (S.D.N.Y. Dec. 15, 2021). The EEOC filed an enforcement action alleging that Defendants, several labor organizations, engaged in racially discriminatory practices in selecting apprentices and providing job opportunities to minority members in violation of Title VII of the Civil Rights Act. The parties entered in to a consent decree in 1978 that the Court approved, which imposed specific obligations upon Defendants to rid the labor organizations of the effects of previous racial discrimination and to foster non- discriminatory job selection and apprenticeships in the union membership. In the following years, Defendants