86 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP Defendants to use the Investigation or the Investigation Report to support any affirmative defense.”693 According to the court, the employer intended to use the report as evidence of a legitimate, nondiscriminatory reason for plaintiff’s termination under the McDonnell Douglas burden-shifting framework, but could not and/or did not intend to use it to establish any affirmative defense.694 The distinction between the different burden-shifting regimes under Title VII and EPA was critical to the court’s analysis. Under Title VII, “an employer is only required to articulate or produce a legitimate reason for its actions, but the employer does not bear a burden to prove or persuade, only to make a minimal evidentiary showing,” in contrast to “the Equal Pay Act, under which the employer bears a burden of persuasion to show one or more of the enumerated justifications other than sex for a pay differential..’”695 Accordingly, the city employer had not waived privilege over its attorney’s investigation because it was being offered only to support a denial that is not an affirmative defense. “[T]he fact that an attorney investigates a claim and reports to a corporate client does not waive privilege where ‘no actual defense of reliance on the attorney's recommendations or findings is made as a basis of the defense against the claim.’”696 However, in Goulet v. University of Mississippi,697 the District Court for the Northern District of Mississippi held that large swaths of an employer’s internal investigation of plaintiff’s equal pay and other sexdiscrimination complaints should be produced because attorney-client privilege had been waived. In that case, six female university professors sought the production of an investigative report compiled by their employer’s counsel after they filed a pre-suit internal complaint of discrimination. The employer had relied on that report in its formal response to plaintiffs’ charge of discrimination filed with the EEOC. Among other things, the employer disclosed to the EEOC what it learned from interviewing plaintiff as part of the investigation, as well as other facts learned during the course of the investigation. Stating the blackletter law of waiver or privilege, the court held: “’[t]he attorney-client privilege was intended as a shield, not a sword.’ . . . When a litigant places information protected by attorney-client privilege at issue through some affirmative act for the litigant's own benefit, then allowing the privilege to protect against disclosure would be manifestly unfair.”698 Applying those principles, the court held that all but 10 pages of the employer’s 64-page investigative report should be disclosed because privilege had been waived “for the reason that the information discussed in that material has already been disclosed by the University and its counsel to third parties—or in light of what has been disclosed, fairness would dictate the balance should be as well.”699 In EEOC v. George Washington University,700 the District Court for the District of Columbia based its waiver decision on how the employer planned to use its investigation files in litigation. In that case, the EEOC alleged that a female Executive Assistant to the employer’s former Athletic Director was paid less than a male “Special Assistant” for the same work.701 She filed an internal grievance with the employer’s EEO office and a charge with the EEOC. The employer initiated an internal investigation to review the matter, which was initially conducted by non-lawyer staff in the EEO office. The investigation was later handed over to a law firm, which then issued a Confidential Informal Grievance Report.702 In discovery, the EEOC requested all documents relating to that investigation, but the employer withheld all documents, except the grievance itself, under the auspices of attorney-client privilege and the work 693 Id. at 610. 694 Although the employer’s Rule 30(b)(6) witness had testified the city would rely on the report to establish its good faith defense and other affirmative defenses, the court held that it is attorneys, not witnesses, who decide trial strategy, and that the city was not bound by strategy determinations stated by a witness at a deposition, even of a corporate witness. Id. 695 Id. at 612 (citing Parada v. Great Plains Int’l of Sioux City, Inc., 483 F. Supp. 2d 777, 809 (N.D. Iowa 2007) and citing and quoting Bauer v. Curators of Univ. of Mo., 680 F.3d 1043, 1045-46 (8th Cir. 2012)). 696 Id. at 613 (quoting Stockton v. HouseCalls Home Health Servs., Inc., No. 06-cv-357-GKF-PJC, 2007 WL 9782747, at *4 (N.D. Okla. June 15, 2007)). 697 Goulet v. Univ. of Miss., No. 3:22-cv-89-NBB-JMV, 2023 WL 2603939 (N.D. Miss. Mar. 22, 2023). 698 Id. at *4 (citing and quoting Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989)). 699 Id. 700 EEOC v. George Washington Univ., 342 F.R.D. 161 (D.D.C. 2022). 701 Id. at 166. 702 Id.
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