©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 65 DEVELOPMENTS IN EEOC ENFORCEMENT OF EQUAL PAY ACT CLAIMS The EEOC is the federal government’s most powerful agency for the enforcement of federal antidiscrimination laws in the workplace. Authorized by Congress to wield broad investigative and subpoena powers for the prevention and remediation of unlawful employment practices, the EEOC’s enforcement mechanisms cover a range of activities, from individual and systemic claims investigations, conciliation, litigation and monitoring compliance, to serving as an agent for effecting broader policy change in employment sectors throughout the country. For the past decade, the EEOC has set forth its top litigation priorities in its Strategic Enforcement Plan. For just as long, that plan has stated that the EEOC will continue to focus on compensation systems and practices that discriminate based on sex under the Equal Pay Act (“EPA”) and Title VII.543 Most of its cases have revolved around sex-based discrimination. However, the EEOC stressed that it will also focus on compensation systems and practices that discriminate on any protected basis, such as race, ethnicity, age, or individuals with disabilities.544 A. Recent Examples Of EEOC Enforcement Activity Despite it being a top priority for over a decade, the number of EEOC lawsuits alleging equal pay violations has dropped significantly over the past few years, most likely due to the change in EEOC leadership that accompanied the former presidential administration. The relative dearth of new filings over the past few years has led to a decline in legal decisions: i.e., fewer equal pay cases winding their way through the courts means fewer opportunities for courts to opine on equal pay issues involving the EEOC. In fact, the only substantive EEOC equal pay decision in 2022 involved a discovery dispute arising out of the long-running case, EEOC v. George Washington University.545 But it was an important decision, and one that every employer dealing with equal pay issues should read. In that case, an Executive Assistant to the employer’s former Athletic Director alleged she was paid less than a male “Special Assistant” for the same work.546 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.547 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 product doctrine, arguing that the investigation was done at the behest of the University’s Office of General Counsel and, later, the law firm that conducted the investigation. 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 that 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.548 She then received guidance from the employer’s in-house 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 543 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 544 Id. 545 EEOC v. George Washington Univ., 342 F.R.D. 161 (D.D.C. 2022). 546 Id. at 166. 547 Id. 548 Id. at 179.
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