Employers have the right to pay a man more than a woman for the same work if he had a higher salary at a previous job and there is a "reasonable policy" that justifies the company using past salaries to determine compensation. This was an opinion issued in April by the 9th Circuit in Rizo v. Yovino - a decision that threatens to severely undermine this country's progress on pay equity.
Despite the more than 50 years that have passed since the enactment of the federal Equal Pay Act, based on the current rate of change it will take until 2152 - another 135 years - for the pay gap between men and women to be eradicated in the United States. It's a sobering fact to consider on this Equal Pay Day 2017, especially in light of the new Gender Pay Gap Reporting legislation that takes effect later this week in the United Kingdom.
Three plaintiffs successfully defend a jury verdict totaling $204,000 in a Title VII, Equal Pay Act and Iowa Civil Rights Act case, plus $269,877.67 in attorney's fees. The court casts doubt on the use of a "market forces" defense by employers to justify lower pay for women, yet also holds that if such a defense were valid, the employer presented insufficient evidence to warrant an instruction.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.
After years of study and training to become highly educated health professionals, female doctors often find they don't earn the same as their male colleagues. Unfortunately, that's not a new revelation, but data spotlighting the pay disparity has been difficult to collect and routinely challenged as flawed by critics and defense lawyers. Until now.
In a move fitting of her determined "House of Cards" character, actress Robin Wright demanded that she be paid the same salary as her co-star Kevin Spacey - or else she would go public with news of the disparity. Ms. Wright revealed the details of her ultimatum during a Rockefeller Foundation event on Tuesday, later reported by the Huffington Post.
Employers have often argued that the Equal Pay Act does not apply if the male and female comparable employees spend significant amounts of time on different tasks. Yet the Tenth Circuit today affirmed that if a female employee performs additional duties beyond a male comparator, that fact does not defeat the employee's prima facie case under the EPA.
Plaintiffs lately seem to be on a tear in the Seventh Circuit. Here's another reversal of summary judgment where the district court judge misapplied the McDonnell Douglas test to an Equal Pay Act case, earning the storied burden-shifting method of proof yet another swift kick by a Seventh Circuit panel.
The SEC recently published a notice that the Financial Industry Regulatory Authority, Inc. ("FINRA") has proposed a rule change to its Code of Arbitration Procedure for Industry Disputes. The proposal would be a welcome change - the new rule would make collective actions ineligible for FINRA arbitration, just as class actions already are. With the rule change, employees who are registered with FINRA (e.g., stockbrokers, traders, and other employees working in securities businesses) will be able to file and participate in FLSA, ADEA, and EPA collective actions without the threat of being compelled to arbitrate their claims in FINRA's forum.
Two plaintiffs win at trial and, on appeal, achieve differing results. In the First Circuit, a Title VII plaintiff improves on her win by persuading the court (with an assist from the EEOC as amicus) that the number of employees in the "current or preceding calendar year" - for purposes of setting the damage cap under 42 U.S.C. § 1981a(b)(3) - is based on the number of employees at the time of the act of discrimination, rather than at the time of trial. In the Fifth Circuit, the employee keeps her Equal Pay Act award, but loses a state statutory wage claim.