©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 85 failed to show willfulness, explaining that plaintiff “points to no evidence in the record in support of her assertion that [employer] willfully violated the EPA.”685 Similarly, in Jones v. Trane US, Inc.,686 a management-level employee alleged, among other things, unequal pay and retaliation. The question was whether plaintiff’s EPA claim was barred by the statute of limitations because she had received her last paycheck more than two years prior to her lawsuit. The court first held that neither the filing of an earlier informal complaint, nor filing a charge of discrimination with the EEOC, constitutes the filing of a legal claim for purposes of the statute of limitations.687 The court then rejected her attempt to show a willful violation. The only proof plaintiff had proffered was the mere fact that a pay disparity existed, and the employer knew about it. “[F]or a claim to fall into the category of a willful violation there must be something more than proof of merely a violation of the EPA.”688 5. Maintaining Privilege of Internal Investigations and Proactive Pay Studies The onset of litigation may not be the first time an employer hears about an employee’s equal pay allegations. Often an employee will bring their concerns to company personnel before bringing a lawsuit in court. Employers typically investigate such claims (as they should), with the goal of correcting any unjustified pay disparities they may find. Many times, however, an employer’s investigation will reveal no evidence of unlawful pay disparities. If the employee rejects the employer’s conclusion and decides to sue, the discoverability of the employer’s investigation file can become an issue in litigation. Employers that are careful to conduct their investigations under the cover of attorney-client privilege usually withhold some or all of their investigation files from production. But, even in those cases, employees will sometimes argue that an employer waived privilege by putting the investigation at issue in the litigation. These issues can lead to highly contentious and fraught discovery disputes. The details of exactly how an investigation report will be used by the employer in litigation can be dispositive of an employee’s claims of waiver. For example, in Benson v. City of Lincoln,689 a female firefighter alleged a range of sex-based discrimination claims against her city employer. Plaintiff had alleged that another firefighter refused to communicate with her and left her and her crew in a dangerous situation, and the employer hired an outside attorney to conduct an investigation.690 The attorney investigating the incident interviewed plaintiff, the other firefighter accused of misconduct, and several other firefighters who were at the scene of the incident, and her report was marked confidential as attorney-client privileged and attorney work product.691 The investigatory conclusions generally refuted plaintiff’s claims of misconduct, leading to plaintiff’s termination for, among other things, making false allegations against a fellow firefighter.692 Although the employer produced the investigation report itself to plaintiff, it withheld the attorney’s other communications, documents, and recordings in her investigative file as work-product or attorney-client privileged. Plaintiff argued the privileges had been waived because the employer intended to use the report to refute plaintiff’s case in litigation. However, the court found “the record reflects no intent on the part of 685 Id. at *15. 686 Jones v. Trane US, Inc., No. 3:19-cv-0453, 2020 WL 5088211 (M.D. Tenn. Aug. 28, 2020). 687 Id. at *9. See also Black v. State of Ohio Indus. Comm’n, No. 2:21-cv-2987, 2023 WL 5935650 (S.D. Ohio Sept. 12, 2023) (holding that time-barred claims cannot be salvaged by comparing a plaintiff’s entire tenure of employment to that of her successor; one must base a comparison on the time period available for recovery: “Plaintiff argues that her pay during her first several years as Chief Legal Counsel was unequal when compared to [successor’s] pay, but she cannot save the time-barred claim simply by using her successor as the comparator”). 688 Id. at *10. 689 Benson v. City of Lincoln, 343 F.R.D. 595 (D. Neb. 2023). 690 Id. at 602. 691 Id. at 602-03. 692 Id. at 603.
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