By Matthew J. Gagnon

Seyfarth Synopsis: We are pleased to announce the publication of the latest edition of Developments in Equal Pay Litigation, available as an eBook here. This report contains our annual analysis of trends and developments in the relentlessly dynamic body of law that is the equal pay litigation and legislation landscape. It was released along with Seyfarth’s 50 State Equal Pay Reference GuideGlobal Pay Equity Desktop Reference, and Pay Transparency Wage Range Disclosure Compendium reports. We hope our readers will find these resources useful as a guide to these developing legal issues, here and around the world.

Developments in Equal Pay Litigation is intended primarily to be a guide to litigation trends. The first section discusses recent developments in equal pay legislation at both the federal and state level, with an emphasis on the different legal risks they pose to employers operating in many jurisdictions. The second section is the heart of the book; it contains an in-depth analysis of recent decisions from the federal and state courts concerning pay discrimination, including substantive trends and developments in the legal theories and defenses advanced by plaintiffs and employers. The third section discusses significant developments in federal regulation and enforcement of equal pay issues as driven by the EEOC, for whom pay discrimination continues to be a top enforcement priority.

Some of the cutting-edge issues discussed in more detail in this book are:

  • An analysis of how courts are interpreting the new state-level equal pay statutes and how they may differ (or not) from the federal Equal Pay Act and Title VII;
  • How courts are navigating the growing debate over the “one-comparator” rule; i.e., whether an employee can establish a prima facie case of wage discrimination by pointing to just one comparator, despite other evidence that might undercut an inference of discrimination;
  • New theories that attempt to expand the scope of equal pay liability, including efforts to undermine some of the more common arguments employers use to explain a wage disparity in accordance with the statutorily-defined affirmative defenses;
  • The implications for equal pay litigation of the Supreme Court’s Bostock decision, which held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity; and
  • A new section added this year that may be of great concern to many employers: recent case law that addresses maintaining attorney-client privilege over equal pay audits and internal investigations.

Our goal is to provide analysis and commentary regarding these and other developments so that corporate counsel, human resources professionals, and other decision makers have the up-to-date guidance they need to make informed decisions regarding equal pay issues, including a solid background in the types of issues that often come up in equal pay litigation. In the coming weeks, we will also publish a series of posts that address in more detail what we regard as some of the more significant developments discussed in this book. We look forward to continuing this conversation with you!