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Ninth Circuit Reaffirms Only Job-Related Factors Will Excuse Pay Disparity Under Federal EPA, Prior Salary Not Job-Related

On February 27, 2020, the Ninth Circuit issued a long-anticipated decision in Rizo v. Yovino.1 Consistent with the Ninth Circuit’s original opinion issued in 2018, which was vacated on procedural grounds by the United States Supreme Court in 2019, the appellate court affirmed its prior holding and concluded that: (1) only job-related factors may excuse wage disparities between comparable employees within the context of a federal Equal Pay Act (EPA) claim, and (2) prior salary, alone or in consideration with other factors, is not job-related, and therefore cannot serve as an affirmative defense to an EPA claim.

Prior Pay No Defense to Pay Difference Under Equal Pay Act, Ninth Circuit Reaffirms

Prior pay, alone or in combination with other factors, is not a job-related “factor other than sex” that can be used to justify a difference in pay under the Equal Pay Act (EPA), a majority of judges on the U.S. Court of Appeals for the Ninth Circuit has held again. Rizo v. Yovino, No. 16-15372 (Feb. 27, 2020).


When the US women’s soccer team won the World Cup this summer, crowds chanted “Equal pay!” in reference to pay disparities between the US women’s and the men’s teams. Considering the #MeToo era, pay equity in employment has become a hot-button issue on the 2020 US presidential campaign trail and has spurred legislation and numerous lawsuits.

Jury Finds Against Female Physician’s Unequal Pay Claims

A federal jury in Iowa has rejected Equal Pay Act claims by a female physician alleging she was paid less than her male colleagues in the same network for performing substantially equal work under the same compensation formula. Bertroche v. Mercy Physician Assoc., Inc., No. 1:18-cv-00059 (N.D. Iowa Nov. 13, 2019).

Survey Says Employers are ‘Taking Action on Pay Equity Management’

A majority of employers (60%) are not only conducting analyses to identify and address pay equity issues, but are conducting analyses with the objective of “resolving the root causes” of identified pay inequities, according to “Pay Equity Practices – Survey of C-Suite and Reward Leaders” from WorldatWork and Korn Ferry.

Pay Equity Challenges Continue: EEOC Sues Nursing Home for Paying Female Nurse Less

Pay equity challenges continue to make the news in the healthcare setting, primarily in the context of physician pay equity gaps. This month, the journal Pediatrics published data from the American Academy of Pediatrics’ Pediatrician Life and Career Experience Study (PLACE), which included 1,000 physician responses on income and 1,300 responses on household responsibilities.

The Future of Federal Pay Equity Law, According to Democratic Presidential Candidates

State pay equity laws, in large part, has been a response to a perception that the federal government is not acting effectively or quickly enough to address gender and race pay gaps. Not surprisingly, several democratic presidential candidates have staked out platforms on how they will address pay inequities at the federal level – some more specific than others.

Keeping Compliant with Expanding State and Local Equal Pay Laws

Since 2016, hundreds of bills and dozens of new laws aimed at closing the pay gap have been introduced and enacted at both the state and local levels. These laws include jurisdiction-specific pay equity laws, salary history inquiry bans, and wage transparency protections. Each of these types of laws are described more fully below.

Minding the Pay Gap: What Employers Need to Know as Pay Equity Protections Widen

The pay gap – or paying women and other historically marginalized groups less for the same or substantially similar work – has increasingly been in the media spotlight. Politicians have also taken note. While there have been pay discrimination laws on the books at the federal level and in most states for decades, over the past several years, state and local governments and Puerto Rico have passed numerous new laws all aimed at closing the pay gap.

New York Governor Kicks Off U.S. Women’s Soccer Team’s Ticker-Tape Parade with Equal Pay Legislation

On the heels of the U.S. Women’s Soccer Team’s World Cup win, Governor Andrew Cuomo on July 10, 2019, signed into law two bills that expand New York’s existing equal pay laws.

Pay Equity FAQs, Topics, and Trends

The trend of increased legislation, regulation, and corporate initiatives focused on identifying and correcting pay disparities in the workplace has continued to grow. In this episode, Liz Washko discusses recent developments related to pay equity, how to conduct a pay audit, and more.

Equal Pay Day & The US Pay Equity Landscape

Equal Pay Day symbolizes how far into the current year women must work, on average, to reach the same level of compensation that male workers earned in the prior year in the United States. Falling on April 2, this year, 17 days earlier than in 2005, Equal Pay Day 2019 shows movement toward pay equity.

House of Representatives Passes Paycheck Fairness Act, But its Future is Uncertain

On March 27, 2019, the U.S. House of Representatives passed H.R. 7, the Paycheck Fairness Act. The bill would amend the Equal Pay Act of 1963 (EPA) to expand potential damage awards for equal pay claims, limit an employer’s ability to raise the “any factor other than sex” affirmative defense in wage discrimination cases, and make it unlawful for an employer to prevent employees from discussing or comparing salaries, among other changes.1 Given the political makeup of the Senate, this bill is unlikely to advance much further this legislative season. Because the issue of pay equity is gaining ground, however, the bill may be used as a campaign talking point as the next election approaches. In addition, states have been picking up the legislative slack, so similar bills could advance in local state houses.

Rethinking Pay Equity: Being Transparent — Should Employers Publish Information About Pay?

This is the final article in our four-part series titled “Rethinking Pay Equity,” designed to provide practical guidance to help employers understand and address the many new rules, regulations, and best practices around pay equity in preparation for Equal Pay Day 2019. This article focuses on the increasing pressures on employers to publicly address pay equity and the issues to be considered in deciding whether to go public about pay. The four-part series will culminate in a complimentary webinar on April 2, Equal Pay Day, by the Co-Chairs of the Jackson Lewis Pay Equity Resource Group, Joy Chin and Stephanie Lewis.

Rethinking Pay Equity: Common Explanations for Pay Differences

This is the third article in our four-part series titled “Rethinking Pay Equity,” designed to provide practical guidance to help employers understand and address the many new rules, regulations, and best practices around pay equity in preparation for Equal Pay Day 2019.

Rethinking Pay Equity: Who is ‘Comparable’ for Pay Equity Purposes?

This is the second article in our four-part series titled “Rethinking Pay Equity,” designed to provide practical guidance to help employers understand and address the many new rules, regulations, and best practices around pay equity in preparation for Equal Pay Day 2019.

Pay Equity Co-Chairs Discuss Supreme Court’s Pay Bias Ruling

The U.S. Supreme Court took an unusual step in vacating a 2018 decision from the U.S. Court of Appeals for the Ninth Circuit because the judge who authored the opinion, and was part of the majority in the precedent-setting ruling, died before the decision was published. The high court reversed a landmark pay equity ruling that held employers could not justify wage differentials between men and women by relying on previous salary information.

Rethinking Pay Equity: Overcoming the Impact of Prior Salary Information

This is the first in our four-part series titled “Rethinking Pay Equity,” a special series of legal alerts aimed at providing practical guidance to help employers address the many new rules, regulations, and best practices around equal pay in preparation for Equal Pay Day 2019. The series will culminate with a unique, complimentary webinar on April 2, Equal Pay Day, by the Co-Chairs of the Jackson Lewis Pay Equity Resource Group.

Equal Pay Day is April 2, 2019. Are You Ready?

The Jackson Lewis Pay Equity Resource Group is pleased to announce a special series to help employers prepare for Equal Pay Day. “Rethinking Pay Equity” will take a look at several of the biggest questions facing employers in the ever-evolving #equalpay landscape, including: How can prior salary information perpetuate the persistent pay gap, and how should we measure and address the impact of years-long reliance on such information in the hiring process? What data should we use when reviewing pay? Who should be compared against whom? What do we do if pay analyses reveal a problem? Should the company voluntarily make public disclosures about pay?

U.S. Supreme Court Vacates and Remands Ninth Circuit's Decision in Equal Pay Case

On February 25, 2019, the United States Supreme Court vacated and remanded the Ninth Circuit’s decision in Rizo v. Yovino,1 in which it held an employer cannot justify a wage differential between men and women by relying on prior salary. The Supreme Court determined that the Ninth Circuit’s publication of the Rizo decision was contrary to established appellate precedent and judicial practice because the judge who authored the majority decision was deceased at the time the decision issued.2 Explaining that “federal judges are appointed for life, not for eternity,” the Supreme Court granted certiorari and vacated the Ninth Circuit’s decision.3

US Supreme Court Reverses Controversial Ninth Circuit Equal Pay Act Ruling

US Supreme Court reverses controversial Ninth Circuit Equal Pay Act ruling.

On Technicality, U.S. Supreme Court Vacates Ninth Circuit Ruling Barring Reliance on Prior Salaries As Defense In Pay Discrimination Dispute

Because the judge who authored the ruling died before the decision was issued, the Ninth Circuit erred in counting him as a member of the majority, the U.S. Supreme Court ruled in Yovino v. Rizo, No. 18-272 (Feb. 25, 2019). On this technicality, the Supreme Court vacated the Ninth Circuit ruling that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act.

Salary History Is Not Quite History in the Ninth Circuit, According to Supreme Court

On February 25, 2019, in a much awaited decision, the Supreme Court of the United States issued a per curiam ruling in Yovino v. Rizo, No. 18-272, 586 U.S. ___ (2019). Rather than address the substantive issue of whether an employer may rely on salary history to establish starting pay under the federal Equal Pay Act (EPA), the Court vacated and remanded the matter on a procedural—yet still important—issue.

Supreme Court Strikes Down Significant Pay Equity Case

The Supreme Court took the unusual step today of vacating a 2018 federal appeals court decision because one of the judges counted in the majority was deceased by the time the decision was published, reversing a landmark pay equity ruling that concluded employers could not justify wage differentials between men and women by relying on prior salary. Although the justices did not examine the merits of the 9th Circuit’s Yovino v. Rizo ruling in today’s unsigned five-page opinion, their decision plunges employers back into a state of uncertainty regarding a controversial pay equity practice.

The Incredible Shrinking Woman’s Earnings: The Gap is Bigger Than We Thought!

A newly-released study by the Institute for Women’s Policy Research (IWPR) states that the gender wage gap is more dismal than we thought. For every dollar earned by a man in a 15-year period, the study says, the average woman only makes 49 cents – and not 80 cents.

NY Federal Court Significantly Limits Scope of Equal Pay Case

For years, employment lawyers on both sides have disagreed on what is required to obtain class treatment in a Title VII discrimination case. On November 30, 2018, the U.S. District Court for the Southern District of New York issued an opinion in Kassman v. KPMG LLP decidedly in favor of the employer, and laid out a structure for analyzing commonality in putative class actions involving manager discretion over pay and promotions.

Federal Circuit Urged to Reconsider Prima Facie Showing Required for Equal Pay Act Claim

As previously reported here, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit held in September that Equal Pay Act (EPA) plaintiffs must show not only that they are receiving less pay than similarly situated male colleagues, but that the pay differential is “historically or presently based on sex.” This holding departed from the decisions of other federal courts of appeals and prompted a request for en banc review by the full court to overturn the panel decision. The American Civil Liberties Union (ACLU) and dozens of other advocacy groups have filed friend-of-the-court briefs supporting the plaintiffs’ request.

Grade/Step Pay-Setting System Insufficient to Defeat Pay Discrimination Claim, Fourth Circuit Holds

The courts are making it increasingly difficult for employers to prevail on equal pay discrimination claims based on the “factor other than sex” affirmative defense. One recent example is the decision in EEOC v. Maryland Ins. Admin., 879 F.3d 114 (4th Cir. 2018), from the U.S. Court of Appeals for the Fourth Circuit. There, the Equal Employment Opportunity Commission filed suit against the Maryland Insurance Administration (MIA) on behalf of three female fraud investigators alleging pay discrimination in violation of the Equal Pay Act, 29 U.S.C. 206(d).

Knocking on Pay Equity’s Door: Commercial Real Estate Women Network Seeks Answers to Gender Wage Gap

The Commercial Real Estate Women (CREW) Network recently evaluated the pay gap by gender in the commercial real estate industry and published a white paper entitled “Achieving Pay Parity in Commercial Real Estate” (Linked here). The white paper reports that the gender pay gap “persists and is strongest for [women] earning less than $100,000 and above $250,000.” The greatest gap was found with commercial real estate brokers, with a pay differential of 33.8% between women and men.

Dear Littler: Will Recent Equal Pay Legislation Affect Our Annual Comp Reviews?

Dear Littler: My employer is preparing for our annual review of staff compensation. My boss heard there have been a lot of changes in the law about equal pay that might affect our evaluations. He’s asked me to look into what new issues we might need to consider. What developments in employment law will be relevant as we set compensation for next year? We are primarily in New Jersey but operate in multiple states, if that makes a difference.

Equal Pay Act Claim Requires Show of Pay Disparity “Based on Sex” as Part of Prima Facie Case, Court Holds

Departing from other federal appeals courts, the U.S. Court of Appeals for the Federal Circuit has held that Equal Pay Act plaintiffs must establish that the pay differential between similarly situated employees is “historically or presently based on sex” to make out a prima facie case.

Crossing the Pay Gap: Tips for Employers Considering Pay Adjustments to Achieve Pay Equity

With the #MeToo and #TimesUp movements re-energizing the focus on #EqualPay, employers increasingly may find themselves facing questions about how they are paying employees and what they are doing to help close the pay gap. A growing number of companies are adjusting their compensation programs to address pay equity concerns. In recent months, several large companies announced broad overhauls of pay and bonus plans in an effort to eliminate potential discrimination and achieve pay parity.

Protest Challenges Pay Discrimination Behind the Lens

Since the start of the “Times Up” and “Me Too” movements, the spotlight has remained on the gender-based wage disparities existing between female and male actors that work on the same cinematic productions, yet receive unequal pay. However, many in Hollywood feel that women who work behind the scenes in film production or as part of the “below the line” crew, such as in script production, make-up and costume creation, pre- or post-production film editing, and graphics and art design, should not be overlooked.

Mind the (Gender & Race) Gap

When we think about the “pay gap,” often only the disparity between genders comes to mind – the disparity in pay between all males and all females. It is not the only gap employers should be mindful of. For example, Black Women’s Equal Pay Day, which this year fell on August 7, shines a spotlight on wage inequities based on race and gender. Black Women’s Equal Pay Day marks how long a black woman has to work into 2018 to earn the same amount as a white male. On August 7, news stations published articles, #BlackWomensEqualPayDay was trending on Twitter, and celebrities spoke out about the issue. Pay equity has been a hot-button issue, especially at the state and local levels.

Physician Pay Equity Issues Are Under the Microscope

As our Healthcare Workplace Update reported on June 21, and as is the case across many industries, issues related to physician pay equity are receiving increased attention nationwide.

American Medical Association Adopts Resolution to Promote Pay Equity

The healthcare industry is following other industries with an increased focus and growing sense of alarm over the gender pay gap.

A Changing Pay Equity Landscape

Sam Lillard was recently published in the Columbus Bar Association’s Legal Connections on “A Changing Pay Equity Landscape.” This article reviews the federal and state laws that prohibit pay discrepancies based on sex.

Ninth Circuit Holds "Catchall" Exception to the Equal Pay Act is Limited to "Job-Related" Factors, Excludes Consideration of Prior Salary

In Rizo v. Yovino,1 the U.S. Court of Appeals for the Ninth Circuit recently examined whether an employer can justify a wage differential between male and female employees by relying on prior salary. The Ninth Circuit determined that prior salary—alone or in combination with other factors—cannot justify such a wage differential because prior salary is not job-related, and perpetuates the gender-based assumptions about the value of work that the Equal Pay Act was designed to end. In reaching this conclusion, the Ninth Circuit became the first appellate court to definitively address whether and how employers may consider wage history. Other federal appellate courts that have examined this question have typically concluded that while employers may not rely on an individual’s salary history alone to support a wage differential, they may do so if prior salary is considered among other factors.2

Employers Cannot Consider Prior Salary History to Justify Wage Gap under the Federal Equal Pay Act

On April 9, 2018, the Ninth Circuit Court of Appeals issued its opinion in Rizo v. Yovino, holding that employers cannot consider an employee’s prior salary either alone or in combination with other factors to justify salary differentials between men and women for the purposes of the federal Equal Pay Act.

What Employers Need to Know Now About the Ninth Circuit’s Salary History Decision

The Ninth Circuit Court of Appeals recently released its opinion in Rizo v. Yovino, No. 16-15372 (April 9, 2018). In this high-profile case, the court held that “prior salary alone or in combination with other factors cannot justify a wage differential” between male and female employees. This article provides practical answers to employers’ questions regarding the ruling.

Employers Can’t Use Salary History to Defend Pay Gap

On Monday, April 9, 2018, the day before Equal Pay Day, the Ninth Circuit Court of Appeals held that employers cannot use an employee’s past salary to justify paying women less than men under the federal Equal Pay Act (EPA). The Ninth Circuit’s decision in Rizo v. Yovino overruled prior holdings in the circuit that past salary is a “factor other than sex” that employers could use to justify a pay gap between men and women under the EPA, concluding that prior salary cannot be used, alone or in combination with other factors, to justify a wage differential.

Ninth Circuit Reverses Its Own Precedent and Newly Holds That Prior Salary History Cannot Justify a Pay Disparity Between Men and Women

You may recall that last year, we reported on a Ninth Circuit case, Rizo v. Yovino, wherein the Court of Appeal held that an applicant’s prior salary history is a “factor other than sex” that an employer may rely on, either alone or in combination with other factors, in setting pay rates--even though the use of that factor may result in men and women being paid different rates of pay for similar work. In so holding, the Court of Appeal relied on its own prior precedent (dating back to 1982), Kouba v. Allstate, wherein the Court expressly held that this was permissible and could not support a federal Equal Pay Act violation.

Salary History is Not a Permitted ‘Factor Other Than Sex’ under Equal Pay Act, Ninth Circuit Holds

Prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act, the U.S. Court of Appeals for the Ninth Circuit has held in an en banc decision. Rizo v. Yovino, No. 16-15372 (Apr. 9, 2018). This decision overturns the 2017 decision of a three-judge panel of the Ninth Circuit and the Court’s 1982 decision holding that prior salary was a permissible “factor other than sex” under the Equal Pay Act. Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th Cir. 1982).

Appeals Court Says Salary History Can’t Block Equal Pay Act Claims

In a landmark decision that will accelerate the growing pay equity movement, especially for employers on the west coast, the 9th Circuit Court of Appeals today became the latest federal court of appeals to rule that employers cannot justify a wage differential between men and women by relying on prior salary. By tightening the language contained in the Equal Pay Act, the 9th Circuit has just made it more difficult for employers to justify pay differentials and defend pay equity claims. This is a wake-up call for all employers to ensure their compensation structures do not unfairly limit the amount of money women earn at their organizations.

Pay Equity and Equal Pay Day: A Short Primer on Bans on Salary History Inquiries

Pay equity legislation is burgeoning: in 2017, several jurisdictions—including Albany, New York City, California, San Francisco, Massachusetts, Delaware, Philadelphia and Oregon —approved bans on salary history inquiries. The ostensible purpose of these laws is to prevent the continuation of pay disparities that may have affected female applicants in their work experiences prior to seeking employment with a new company. In addition, on April 9, 2018, the Ninth Circuit Court of Appeals issued an en banc decision in Rizo v. Yovino, holding that prior salary does not qualify as a “factor other than sex” to justify a pay difference under the Equal Pay Act—appearing to support the thinking behind the salary history bans.

Is the Pay Gap a Sickness in Your Healthcare Organization? How Healthcare Employers Can Tackle Gender Pay Disparities

In 2017, a number of cases were filed in federal court in various states by female doctors claiming their employers paid them less than allegedly comparable male doctors. At least one of these cases was conditionally certified as a collective action under the Equal Pay Act. These cases followed on the heels of recent studies showing that, on average, female doctors are paid less than male doctors. These studies indicated that such disparities exist even when accounting for relevant factors such as specialty practices, practice ownership, years of experience, and work hours. The studies reflect that the disparities grow bigger when race is brought into the equation.

Eleventh Circuit Reinstates Former Manager’s Equal Pay Act and Title VII Sex Discrimination Lawsuit

In Bowen v. Manheim Remarketing, Inc., No. 16-17237 (February 21, 2018), the Eleventh Circuit Court of Appeals reinstated the Equal Pay Act and Title VII sex discrimination claims of a former manager of a car auction facility who alleged that she had been paid less than the male manager whom she replaced.

Trump’s 2019 Budget Proposal: Systemic Pay Discrimination Will Remain Priority

President Donald Trump’s budget proposal projects that both the EEOC and OFCCP will be “doing more with less.” Consequently, the agencies plan to focus resources.

Hollywood’s Time’s Up Movement Keeps Pay Equity in Spotlight

At the start of 2018, a group of powerful women in Hollywood launched the “Time’s Up” initiative to counter systemic sexual harassment and discrimination and address broader issues affecting women, including fair pay in the workplace. In support of its goals, the initiative includes a legal defense fund to help women protect themselves from sexual misconduct and discrimination.

Beyond Base-Pay: EEOC Settlement Targets Sales Representative Commissions

For some workers, the bulk of their income is commissions or other incentive-based pay, not their salary or base wage. For years, the Equal Employment Opportunity Commission, sales employees, and class action plaintiff attorneys have been interested in fair pay for sales workers and, in particular, pay discrimination involving female sales workers. A recent EEOC settlement demonstrates the need for employers to separately analyze all components of incentive-based workers’ pay.

It’s the Most Wonderful Time . . . For a Pay Equity Update

‘Tis the season . . . for state legislatures to close for the year. While we’re seeing legislative activity at the state level slow down, the past few months brought a flurry of activity in the area of pay equity and bans on salary history inquiries. Here is a recap of recent activity and noteworthy developments.

WPI State of the States: Lawmakers Keep Their Focus on Equal Pay Measures

As the holiday season approaches, legislative activity at the state level is starting to slow down. The California General Assembly closed out its term, for example, giving employers a breather until January. Illinois’ regular session has also concluded, although its ongoing veto override session may yet bring about new labor and employment regulations. Municipal legislators are keeping employers on their toes, no matter the season.

Understanding the EEOC’s Shifting Stance on Pay Bias and Data Collection

Recently, the Equal Employment Opportunity Commission (“EEOC”) has sent mixed signals to employers regarding its efforts to collect salary and pay data to combat pay inequity based on gender and race. Many employers are left wondering what, if anything, they may be required to do after the most recent developments.

Equal Pay Class Action Lawsuit Against Google

Google, Inc. (“Google”) is the latest high profile employer in an onslaught of class actions by female employees alleging systemic discrimination in pay against women. Coupled with the Office of Federal Contract Compliance Program’s (“OFCCP”) investigation into Google’s pay practices and the recent media firestorm over a memo by a disgruntled male (now former) employee, this class action lawsuit has brought Google’s compensation practices into the spotlight.

EEOC Challenges Physician Pay Practices of Texas County Health Department

On August 31, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) in Dallas filed a federal lawsuit in the Eastern District of Texas, Sherman Division, against Denton County, Texas, alleging violations of the Equal Pay Act with regard to Denton’s compensation of two physicians in the county health department. The suit claims the county discriminated against Dr. Martha C. Storrie, a primary care clinician with the health department since October 2008, by “paying lesser wages to [Dr. Storrie] than it paid to a male physician performing the same job.” The EEOC alleges that in August 2015, Denton County hired a male physician to occupy the position of primary care clinician—the same position held by Dr. Storrie—and that the male physician earned at least $34,000 more per year than Dr. Storrie did.

Company’s Reaction to Claim of Unequal Pay Provides Lessons for Employers

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The U.S. Court of Appeals for the Eighth Circuit recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., No. 15-3508 (June 28, 2017).

Company’s reaction to claim of unequal pay is a “don’t do” check-list for employers.

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The 8th U.S. Circuit Court of Appeals recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., 8th Circ., No. 15-3508, June 28, 2017.

Mid-Year Roundup: Equal Pay and Related Bills Command Attention in 2017

Consistent with a major theme of the 2016 election cycle, equal pay and similar wage proposals dominated the attention of state legislatures in the first half of 2017.1 More than 100 such bills were introduced in the recent legislative sessions in more than 40 jurisdictions, including Washington, D.C. and Puerto Rico.2 While most of these bills have languished or were vetoed—most recently, a Maine proposal to expand its equal pay law reached the desk of Governor Paul LePage, only to be vetoed as the legislative term closed on June 30—the trend is apparent.

Unhidden Figures: U.K. Requires Public Gender Pay Gap Reporting

The U.K. Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 went into effect in April. The new law requires private employers with 250 or more U.K.-based employees to publish, for 2017 and every year thereafter, information showing differences in pay between male and female employees.

An Old-School Approach To Equal Pay At 9th Circ.

The Ninth Circuit issued a decision in late April holding that an employer does not violate the federal Equal Pay Act by paying men and women differently for the same work where their starting pay was determined by their salaries in their previous jobs. The court applied a decades-old precedent in reaching its decision, one that is likely to have little impact on private sector employers in California but that might be helpful to employers elsewhere in the circuit.

Ninth Circuit Clarifies Employer Burden Under EPA to Justify Pay Differential

On April 27, 2017, a panel of the Ninth Circuit Court of Appeals vacated and remanded a district court’s ruling denying an employer’s motion for summary judgment on an Equal Pay Act (EPA) claim. In so doing, the court reaffirmed precedent and reinforced how an employer can use prior pay to account for a pay differential between male and female employees. Rizo v. Yovino, No. 16-15372 (April 27, 2017).

April 4 is “Equal Pay Day”

Tuesday, April 4, is Equal Pay Day, the day symbolizing how far into the year women must work to earn what men earned in the previous year and observed by activists and advocates as an occasion to raise awareness about the gender pay gap.

5 Ways to Commemorate Equal Pay Day 2017

April 4 is Equal Pay Day—a day originated by the National Committee on Pay Equity designating how far into the calendar year women would have to work to earn the same as men in the previous year.

U.S. Women’s Sports Intensify the Fray for Equal Pay

About a year ago, five prominent members of the U.S. Women’s Soccer team filed an EEOC charge claiming they were unfairly paid as compared to their male counterparts on the U.S. Men’s Soccer team. That charge is still pending.

Trump Signs Legislation and Issues Order Ending Obama-Era Fair Pay and Safe Workplaces Executive Order

The nearly three-year journey of Executive Order 13673: Fair Pay and Safe Workplaces, which President Barack Obama signed in July 2014, is officially over. Federal contractors will not be required to report alleged labor violations to federal agencies as part of the bid process or implement measures to foster pay transparency. They also will not be prohibited from entering into mandatory arbitration agreements concerning employee Title VII claims.

U.S. Women’s Hockey Team “Dropping the Gloves” for Pay Equity

The U.S. Women’s National Hockey Team will not play in the upcoming International Ice Hockey Federation World Championship unless “meaningful progress” is made in negotiations for increased pay and support from USA Hockey, the sport’s governing body in the United States. They join the U.S. women’s soccer team in the fight for pay equity. The U.S. Women’s National Soccer Team, in 2016, filed a pay discrimination charge with the EEOC against U.S. Soccer, alleging they unfairly are paid less than the mean’s team.

Representatives Wear “Suffragette White” to Support Equal Pay and Other Women’s Issues

During President Trump’s first joint address to Congress, a group of democratic female Representatives wore “suffragette white” to shine the spotlight on issues related to women, including #equalpay. Congresswoman Katherine Clark from Massachusetts, who participated in the unified message, posted on her twitter account, “We’re wearing suffragette white at #JointSession as a pledge to fight for women’s #reprorights, #equalpay, #paidleave & more #WomenWearWhite.”

Achieve Pay Equity Act: Are Employers Ready to Defend Their Pay Practices?

Pay equity issues are hot these days, in the boardroom and in the courtroom. Ask any employment lawyer and they will probably tell you that equal pay is likely to be one of the hottest topics in 2017 and beyond. This is doubly so for New York employers, due in no small part to the state's Achieve Pay Equity Act (APEA).

An Employer’s New Year Resolution: Pay Attention To Pay Equity In 2017

We are not yet through the first month of the New Year, but pay equity lawsuits have already dealt a one-two punch to employers: “one” being a million-dollar settlement between a legal and business research company and its employees, and “two” taking the form of a new lawsuit brought by a female automotive industry employee against automotive giant General Motors. Meanwhile, pay equity legislative activity has already cropped up in South Carolina (among other states), indicating that the pay equity legal boxing match between employees and employers is only in its first round.

Pay Equity: Law, Litigation, and the Gathering of Pay Data

Pay equity issues are hot. President Obama has made pay equity one of the hallmarks of his administration by signing the Lilly Ledbetter Fair Pay Act, establishing the National Equal Pay Task Force, and championing the fight for all employees to receive equal pay for equal work, regardless of sex. States throughout the country have followed suit, enacting sweeping pay equity legislation in the past few years.

Leveraging Data Analytics for Fair Pay

Fair pay is becoming an increasingly visible issue nationally, politically, and organizationally. Employers are paying attention to this issue and seeking out services and consultation to achieve and maintain pay equity. In this episode of Littler’s Big Data Initiative podcast, Dr. Zev Eigen discusses this burgeoning area, where it's headed, and what employers can do now to prepare.

Pay Equity FAQs: Answers to the Questions That Keep You Up at Night

As employers are learning about the many trends and changes that are bringing pay equity issues to the fore, they are asking questions regarding what they can do to protect themselves from potential liability. This article addresses some of the most frequently asked questions regarding pay equity issues.

Equal Pay Efforts Falter at the Federal Level, Gain Traction Elsewhere

Earlier this week, Senators Patty Murray (D-WA) and Deb Fischer (R-NE) attempted to force passage of two pay-related bills. The promotion of rival legislation was likely a symbolic nod to Equal Pay Day, commemorated on April 12. While both efforts predictably failed, this does not mean the push for equal pay is a dead issue. To the contrary, recent efforts by federal agencies and state legislatures indicate this issue will remain active in the months ahead.

National Equal Pay Day 2016

April 12, 2016 is National Equal Pay Day – the date which symbolizes the additional days into the current year women must work, on average, to reach the average pay of men during the previous year.

The UK Continues to Take Aim at the Gender Pay Gap

More than 35 years after the United Kingdom's Equal Pay Act was introduced, recently released statistics show a 19.2 percent gap in average full time salaries between men and women.

Reducing the Risks of Pay Discrimination Claims: Employer Pay Equity Audits

With a proliferation of recent legislative changes and proposed regulatory changes, pay equity is going to be an issue for which employers need to prepare and face head on. Generally speaking, employers may be at risk for pay discrimination claims if they:

President Obama Announces New Plan to Collect Companies’ Salary Data Through New Equal Pay Rules

On January 29, 2016, President Obama announced that the Equal Employment Opportunity Commission (“EEOC”) will be proposing (in the form of a proposed new federal regulation) a revision to its longstanding Employer Information Report (“EEO-1”). The current EEO-1 reporting guidelines require certain private sector employers and federal contractors to provide workforce profiles containing data sorted by race, ethnicity, gender and job category. The proposed new rules would now expand the scope of those required disclosures in the EEO-1 form. Specifically, they would require employers with 100 or more employees to report by race, ethnicity and gender their employees’ total hours worked and W-2 earnings (including tips, taxable benefits and bonuses) for a 12-month period.

EEOC Releases Proposed Rule to Collect Pay Data from Employers

On the anniversary of President Barack Obama signing the Lilly Ledbetter Fair Pay Act, the Equal Employment Opportunity Commission has announced proposed changes to its EEO-1 report, requiring employers to submit employee W-2 earnings and hours worked. All employers with at least 100 employees would be required to comply. EEOC and the Office of Federal Contract Compliance Programs (OFCCP) would jointly have access to the pay data for enforcement purposes.

EEOC Seeks Input on Proposed Pay Data Collection Requirements and Retaliation Enforcement Guidance

The Equal Employment Opportunity Commission is soliciting public comments on two proposed policy changes that could have a significant impact on employers. The agency plans to require companies with 100 or more employees to include pay data as part of their Employer Information Report (EEO-1) form submissions, and issue enforcement guidance on unlawful retaliation.

Unequal pay causes mental illness? Let’s not jump to conclusions.

Did you know that unequal pay causes depression and anxiety?

The Push for Pay Transparency and Equity

On September 10, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency, setting a trend for states to enact legislation aimed at strengthening fair pay, pay transparency, and other legal protections in the workplace. We summarized the final rule in our October 7, 2015 article, “OFCCP Publishes Final Rule to Promote Pay Transparency.”

Employer Pay Practices Viewed as Potentially Discriminatory February 4, 2015

The Tenth Circuit Court of Appeals recently rejected an employer’s argument under the Equal Pay Act (EPA) that a pay differential was justified because a female employee and her male counterparts do not have the same jobs. Riser v. QEP Energy

Even The Doctor Is Not Immune

A federal jury recently awarded $350,000 in punitive and compensatory damages to three former employees of Endoscopic Microsurgery Associates, a Baltimore-area medical practice, who were subjected to unwanted sexual advances by Dr. Mark Noar, the Owner/CEO of the practice, and Martin Virga, the Practice Administrator.

The Evolving World of Equal Pay Laws

President Obama recently signed two executive orders changing the landscape of equal pay protections applicable to federal contractors. The first executive order prohibits federal contractors from firing, demoting or retaliating against employees who discuss their compensation. The second order directs the Secretary of Labor, Tom Perez, to establish and implement new regulations requiring federal contractors to submit compensation data that, in part, is broken down by sex and race. According to the White House, the data will be used to encourage voluntary compliance with already existing equal pay laws and assist with more targeted enforcement initiatives.

President Obama Delivers Double Dose of Wage-Related Rules to Employers

President Obama signed two important documents this week that impact many employers. First, he signed an Executive Order protecting employees who disclose their compensation to co-workers. Second, he sent a Presidential Memorandum to the Department of Labor directing DOL to issue regulations requiring federal contractors and subcontractors to submit compensation data on their workforce by the categories of sex and race.

Sex, Pay, and Retaliation: The White House Weighs In Again

Today, President Obama directed U.S. Secretary of Labor Thomas E. Perez to propose a rule requiring that federal contractors submit summary compensation data to the U.S. Department of Labor (DOL) and issued an executive order prohibiting retaliation against employees and applicants who discuss compensation information. The executive order and presidential memorandum issued today are designed to further the Obama administration’s emphasis on pay equity and wage transparency.

The Equal Pay Act of 1963, The First Tentative Step

The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees. When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.

Men Are From Mars, Women Are From Venus, And Equal Pay Act Claims Are Everywhere

Because of recent high-profile cases claiming gender-based pay discrimination, the Equal Pay Act has taken on a new life. Newspapers continue to tout the controversial statistic that women earn only 77 cents for each dollar men earn. That statistic does not distinguish among jobs and is actually a comparison of apples to oranges, argue critics. Nevertheless, there are certainly situations where women on average are paid less than similarly-situated men. The fact that retail giant Wal-Mart is the defendant in the first major case of this kind in many years has placed all retailers in the crosshairs of the wage and hour plaintiffs' bar.

Federal Appeals Court Rules that Ledbetter Fair Pay Act Does Not Apply to Promotion Claims.

In a ruling that should provide relief to employers worried about the threat of litigation concerning decisions made years ago, a second federal court of appeals held that the Lilly Ledbetter Fair Pay Act (“the Act”) does not apply to discrimination claims arising from denial of a promotion. In Noel v. Boeing, the Third Circuit Court of Appeals, the federal appellate court for Delaware, New Jersey and Pennsylvania, joined a ruling by the D.C. Circuit earlier this year, and held that a Title VII claim is untimely if it concerns a promotion decision made more than 300 days before the plaintiff files a charge with the EEOC or other employment agency, even if the decision resulted in the plaintiff receiving lower pay within the most recent 300 days.

Third Circuit holds that Ledbetter Fair Pay Act does not apply to failure-to-promote claims under Title VII.

In 2009, Congress passed the Lilly Ledbetter Fair Pay Act (FPA), which allows employees to file unequal-pay claims outside of the otherwise applicable 300 day statute of limitations period for filing claims of discrimination. Under the FPA, the statute of limitations re-starts each time compensation is paid pursuant to a “discriminatory compensation decision or other practice,” typically when a periodic paycheck is issued. In an issue of first impression, the 3d U.S. Circuit Court of Appeals recently upheld summary judgment for an employer, and specifically held that a black Haitian mechanic could not use the FPA to support his failure-to-promote claim under Title VII. Noel v. Boeing Co., 3d Cir., No.08-3877, October 1, 2010. In that case, an employee unsuccessfully argued that the 300-day statute of limitations began each time he received a lower paycheck than he would have received had he been promoted three years prior to his claim of discrimination.

Senate Vote on Paycheck Fairness Act May Be Imminent

Senate watchers are reporting that the Senate may vote on the Paycheck Fairness Act (PFA) (S. 3772) as early as this week. The House previously passed the PFA in 2009, but the law failed to clear the Senate. If this law passes, it will mark a major expansion of federal employment discrimination law and will force many employers to dramatically change their compensation practices to mitigate the risk of pay discrimination lawsuits.

The Lilly Ledbetter Fair Pay Act of 2009: Lilly's Legacy is Alive - And Stay Tuned for More to Come.

The Lilly Ledbetter Fair Pay Act of 2009 (the "Act") was the first piece of legislation signed by President Barack Obama. There was much anticipation and fanfare surrounding the Act's inception, passage and enactment. Many organizations and individuals were quite outspoken in their support or criticism of the law. Alarms were sounded and employers were fearful about the potential impact. The Act was widely billed as "Granting Equal Pay to All Women" even though it applies to compensation decisions alleged to have been based on other protected categories including age, disability, religion, national origin, race and color.

Who In The Heck Is Lilly Ledbetter?

In recent weeks, there has been a lot of media attention given to the new "Lilly Ledbetter Fair Pay Act." Who is Lilly Ledbetter and what, if anything, does this Act mean for dealerships?

The Ledbetter Fair Pay Act - What Every Employer Needs To Know.

On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act. The Act requires employers to redouble their efforts to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of pay decisions.


On January 29, 2009, President Obama signed the Ledbetter Fair Pay Act (the “Act”) into law. Notably, this was the first piece of legislation signed by the new President. Although the Act’s supporters claim it is specifically targeted to provide a remedy for discriminatory pay practices, consequences for America’s employers will likely be more extensive.

Preliminary Guidance on Ledbetter Fair Pay Act.

On January 29, 2009, President Barack Obama signed the Lilly Ledbetter Fair Pay Act. The Act will require employers to redouble their efforts to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of their pay decisions.

New Pay Laws Will Lead to More Litigation.

A new year, coupled with a new administration, means new legislation. Even though 2009 is barely a month old, the House of Representatives has already approved two bills which are significant to employers and their workforce. The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act passed the House in January, and are aimed at reducing the discrepancy in employment compensation between women and men.

Fair Pay Act Now Law.

Today President Obama signed into law the Lilly Ledbetter Fair Pay Act which expands the time period in which employees can pursue discrimination claims related to employment compensation. This will result in a substantial increase in the number of pay-related lawsuits.

President Signs Ledbetter Fair Pay Act.

On January 29, President Obama signed the Lilly Ledbetter Fair Pay Act, only two days after Congress passed the law (see Ogletree Deakins’ January 27, 2009 E-Alert). The Fair Pay Act is the first law passed by the new Congress and the first law signed by President Obama. Civil rights groups and their union supporters hailed the symbolism of the Act’s “first law passed and signed” status.
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