84 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP counsel to third parties—or in light of what has been disclosed, fairness would dictate the balance should be as well.”656 Similarly, in EEOC v. George Washington University,657 the District Court for the District of Columbia based its waiver decision on the exact use the employer intended to make of its investigation files in litigation. In that case, the EEOC alleged that a woman Executive Assistant to the employer’s former Athletic Director was paid less than a male “Special Assistant” for the same work.658 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.659 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.660 The EEOC argued that 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.661 The employer argued the materials should stay privileged because it had disclaimed an intent to rely on the internal investigation to support its defense.662 After surveying the law of at-issue 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.”663 Because the evidence the employer intended to rely on to prove its good faith defense was unconnected to its internal investigation, the court held that the privilege had not been waived: “the [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.’”664 Furthermore, companies will often engage 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 and their results are likely to be sought during discovery by plaintiffs. For example, in Spears v. Thermo Fisher Scientific,665 a claim 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 was produced primarily for business purposes and was not covered by attorney-client 656 Id. 657 EEOC v. George Washington Univ., 342 F.R.D. 161 (D.D.C. 2022). 658 Id. at 166. 659 Id. 660 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. Id. at 179. 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 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. 661 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. 662 Id. at 167. 663 Id. at 187. 664 Id. at 188-89 (internal citations omitted). 665 Spears v. Thermo Fisher Scientific, No. 22-2454-DDC-GEB, 2024 WL 4264201, at *2 (D. Kan. Sept. 20, 2024).
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