Equal Pay Litigation Trends Update: Stretching The Boundaries Of Equal Pay Litigation

• Published date: 26 September 2022
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Seyfarth Shaw LLP
• Author: Mr Matthew Gagnon

Seyfarth Synopsis: This is the third in a series of posts covering recent trends in equal pay litigation. This post discusses how plaintiffs have sought to expand the possibilities of an equal pay claim by whittling away the defenses allowed to employers. In particular, plaintiffs' counsel have argued that an employer cannot rely on a policy or practice as a defense if that policy or practice is itself discriminatory in nature or effect. One highly visible example of this trend is plaintiffs' sometimes-successful efforts to delegitimize the use of salary history to set starting salaries. Some courts and state legislatures have decided that this practice only perpetuates historical pay inequities. More recently, enterprising plaintiffs' counsel have attempted to expand this concept to other seemingly gender-neutral practices that employers often use to justify pay disparities.

This is the third in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth's yearly publication, Developments in Equal Pay Litigation, 2022 Update. Our first and second posts examined the nature of the burden-shifting framework used to decide cases under the federal and state equal pay statutes and, in particular, courts' efforts to clarify the parties' respective burdens under that framework. This post examines employers' available defenses to an equal pay lawsuit, but not as they relate specifically to the burden-shifting paradigm. Rather, this post examines plaintiffs' recent efforts to expand the logic of a line of cases (and legislative action) that undercuts employers' use of prior salary to set a new employee's starting salary. The gist of the argument being pushed by the plaintiffs' bar is this: employers may not rely on a policy or practice as a defense to an equal pay lawsuit if that policy or practice is itself tainted by bias.

Recent victories for plaintiffs on the salary history issue in some courts and statehouses arguably jump-started this trend. Different federal circuit courts have come to different conclusions about that practice. The Ninth Circuit has arguably taken the strongest stance against it, holding in a recent landmark decision, Rizo v. Yovino, that salary history, by itself, can never justify a wage disparity because that salary history may be reflective of historical wage disparities prevalent in the marketplace. Setting a new employee's pay based on inequitable past compensation only perpetuates the...