Equal Pay Litigation Trends Update: Recent Attempts To Clarify Burden-Shifting Framework Applied To Equal Pay Act Litigation

Published date23 June 2022
Subject MatterEmployment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Trials & Appeals & Compensation
Law FirmSeyfarth Shaw LLP
AuthorMr Matthew Gagnon

Seyfarth Synopsis: The recent increase in equal pay lawsuits has meant an increase in legal decisions interpreting the provisions of the federal Equal Pay Act and its state-level analogues. That increased scrutiny has brought some surprisingly new and fresh thinking about how equal pay cases should be decided, even with respect to some issues that, until only recently, seemed to be long-settled law. This article will discuss one such fast developing trend: courts starting to question anew the legitimacy and applicability of the McDonnell Douglas burden-shifting framework to resolve these types of cases.

Each year, Seyfarth analyzes all rulings impacting equal pay litigation and distills that analysis into our yearly publication, Developments in Equal Pay Litigation, 2022 Update. Through that process, we are able to identify and track significant legal trends in this area, including what new and novel legal theories are animating the plaintiffs' bar, and which of those tend to be more successful or more broadly applicable to employers navigating the modern American workplace. Although interesting in their own right, an analysis of those trends can also be useful to employers who are facing potential or actual equal pay litigation, as it can sometimes forecast how equal pay plaintiffs will approach certain issues and can reveal pitfalls to avoid. This is the first in a series of posts that will explore some of the most significant of those trends, and what they might mean for employers.

Certainly one of the most significant macro trends in equal pay litigation has been the overall increase in activity and interest in this area. Whether it can be traced back to the #MeToo movement or something else, equal pay litigation is having a moment. That has meant more equal pay litigation in absolute terms, but, more importantly, it has also meant more significant equal pay cases, in that they are focused directly on that issue rather than including it as one among many theories of discrimination. The increase in lawsuits has meant more legal decisions interpreting equal pay legislation and more in-depth analysis of those laws and, in some cases, taking a harder look at legal issues that once seemed quite settled.

One of those issues lies at the very heart of equal pay litigation: what exactly is the method by which courts should determine liability under the federal Equal Pay Act (the "EPA")? The EPA was passed in 1963, so it is hardly new. Yet just in the last...

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