©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 87 product doctrine, arguing the investigation was done at the behest of the University’s Office of General Counsel and, later, the law firm that conducted the investigation.703 The EEOC argued the employer’s assertion of a good faith defense to the EEOC’s claim for punitive damages put the employer’s subjective intentions at issue, thereby waiving privilege over those documents.704 However, the employer had disclaimed an intent to rely on the internal investigation to support its defense and thus argued the materials should stay privileged.705 After surveying the law of atissue waiver, the court applied a narrow interpretation, holding that “a party that has interposed a good faith defense but disclaimed reliance on privileged or protected materials—such as those created in connection with an internal investigation—does not waive protection over those materials.”706 Because the evidence the employer intended to rely on to prove its good faith defense was unconnected to its internal investigation, the court held the privilege had not been waived. “[T]he [employer’s] [good faith] defense relies on evidence that the hiring and compensation decisions at issue here were made in a good faith effort to comply with the law. Importantly, all those decisions predate the internal investigation because ‘the [employer] already had hired [comparator] as Special Assistant and already had determined his and [charging party’s] pay at the time that the Internal Investigation began.’”707 Outside of the investigatory context, companies will often third parties to conduct pay studies to proactively assess whether they are paying fair compensation to employees performing similar work. While pay equal pay studies can be effective ways to reduce a company’s exposure to discrimination lawsuits, they rely on the use of highly sensitive compensation information, so their results are likely to be sought during discovery by plaintiffs. For example, Spears v. Thermo Fisher Scientific,708 was a case involving alleged employment discrimination and Equal Pay Act violations based on race, sex, and age. The court held that a third-party equal pay study had been conducted primarily for business purposes and thus was not covered by attorney-client privilege, even though the study was initially conducted at the direction and supervision of the employer's in-house counsel. In reaching this conclusion, the court relied on evidence that (1) a second engagement letter to the third-party consultant omitted a reference to "legal advice" that had been present in the first engagement letter, (2) the employer had published data and results from the study in its 2022 Corporate Social Responsibility Report with statements that the analysis was done "to ensure our colleagues receive fair, competitive and equitable pay," and (3) the study results were shared publicly with shareholders and the general public rather than being kept confidential for legal purposes. DEVELOPMENTS IN EEOC ENFORCEMENT OF EQUAL PAY CLAIMS 703 The court first had to decide whether the subject materials were privileged at all, given that some of them were created by someone in the EEO office who, while an attorney, was not acting as counsel for the employer with respect to the investigation. The court held those materials were privileged because that person had contacted the employer’s Office of General Counsel within days of receiving the grievance, after determining that litigation was likely. Id. at 179. She then received guidance from the employer’s inhouse lawyers respecting the conduct of the investigation and reported back to them and discussed her findings with them. Under those circumstances, the court held that the entire investigation was done at the direction of counsel, even before the outside law firm became involved, and that a primary purpose of the investigation was the furnishment of legal advice. Id. 704 Under Supreme Court precedent, a defendant in a Title VII case can avoid punitive damages by showing that it engaged in good faith efforts to comply with the statute. According to the EEOC, the assertion of that defense puts an employer’s state of mind at issue, and in particular, its intent and knowledge of the law. Under this theory, the employer’s investigation materials would reveal its state of mind with respect to the EEOC charge and its knowledge of the applicable law, so the EEOC should be entitled to obtain those documents in discovery. Id. at 185. 705 Id. at 167. 706 Id. at 187. 707 Id. at 188-89 (internal citations omitted). 708 Spears v. Thermo Fisher Scientific, No. 22-2454-DDC-GEB, 2024 WL 4264201, at *2 (D. Kan. Sept. 20, 2024).
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