©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 45 consider the rights of absent parties. “Because possible future collective members are not ‘non-moving parties’ to this motion, the Court will not base its determination on speculation about how such unknown individuals might be affected by the stay.”305 The court in Dixon reasoned that equitable tolling was an extreme and disfavored remedy.306 In order to obtain equitable tolling, a litigant must show that she has been pursuing her rights diligently and some extraordinary circumstance stood in her way.307 And it is the person who seeking the benefit of tolling who must make this showing. The court held it was impossible for plaintiffs already in the case to make that showing for putative plaintiffs who had not yet joined. “In determining whether future putative plaintiffs have diligently pursued their rights, it would make little sense for the Court to consider the diligence of a plaintiff who has already filed suit and is not in need of tolling.”308 The court also noted that a stay of discovery would not prevent putative members of the collective action from joining the suit. “Equitable tolling is to be granted rarely, and only in extraordinary circumstances. Plaintiffs have not identified any reason that a stay of discovery will bar any person with a viable EPA claim against Defendants from asserting that claim. Therefore, applying the doctrine of equitable tolling here would render the practice routine.”309 2. Recent Cases Involving Class Action Certification When plaintiffs proceed under state equal pay statutes, they must meet the more rigorous standards applicable to federal Rule 23 class actions or similar state-specific class action requirements. If they can meet those standards, however, they are often rewarded with a much larger class, because those classes use an “opt-out” mechanism rather than “opt-in.” Under the collective action process of the EPA, if putative members of the collective action do not affirmatively opt into the lawsuit, then they are not a part of the collective action. Class actions, on the other hand, automatically include every employee who meets the class definition, unless they affirmatively choose to opt out. When combined with the arguably more lenient standards for establishing a prima facie case that are available under some state equal pay statutes, this can provide powerful incentive for plaintiffs to pursue a class action under state law, rather than the federal EPA. Perhaps the most significant recent development in equal pay class action litigation was the class certification decision issued in Ellis v. Google, Inc.310 In that sizable case, four named plaintiffs brought a class action alleging that their employer had systematically underpaid over ten thousand women employees as compared to men performing the same work. When that class was held to be too broad, Plaintiffs’ amended complaint narrowed their proposed class to female employees who worked in any of 30 separate positions, which plaintiffs categorized into six job “families.”311 They also alleged that the employer maintained a company-wide policy for setting starting salary that included consideration of an employee’s prior salary. According to plaintiffs, that policy perpetuates a historical pay disparity that exists 305 Id. at *4 (quoting Physicians Home Health Infusion, P.C. v. UnitedHealthcare of the Midwest, Inc., No. 4:18-cv-01959 PLC, 2019 WL 4644021, at *3 (E.D. Mo. Sept. 24, 2019)). 306 Id. at *6. 307 Id. at *7. 308 Id. 309 Id. at *9. 310 Ellis v. Google, LLC, No. CGC-17-561299, 2021 WL 4169813 (Cal. Super. Ct. May 27, 2021). 311 Am. Compl. ¶¶ 2-3, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Jan. 3, 2018). The court initially held that plaintiffs’ class definition was simply too broad in that it failed to allege a common policy or course of conduct applicable to the entire class. Without such a policy, it was impossible to identify class members who had valid claims from those who did not, rendering plaintiffs’ proposed class unascertainable. See Order Sustaining Def. Google Inc.’s Dem. to Pls.’ Class Action Compl. At 4, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Dec. 4, 2017).
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