38 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP 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.80 The court next considered the EEOC’s waiver argument. 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.81 After surveying the law of at-issue waiver, the court applied a more 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.” 82 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.’” 83 Lawsuits brought under the EPA tend to be highly fact-driven and therefore notoriously difficult for employers to dispense with through motion practice before trial. This is especially true when it comes to EEOC-initiated litigation.84 But trial itself can be a different story, as the EEOC learned the hard way in a recent stunning loss for the agency. In EEOC v. University of Miami,85 the EEOC alleged that the University paid a female professor less than her counterpart who performed the same job. The court first held that a reasonable jury reviewing the duties of the two professors could conclude that their positions were substantially equal.86 And in fact, the jury deciding the case eventually decided they were.87 The University also argued that the salary disparity between the two professors was due to a factor other than sex; namely, they were “market-based,” that annual raises were determined by individual performance, and that multiple salary analyses confirmed that there was no relationship between gender and salary at the University.88 The court could not credit the “market-based” theory due to the absence of credible evidence as to what the market was at the time the two professors were hired. Moreover, the court found evidence of gender disparities at the University, including evidence that the University placed a higher service requirement on female professors and had proactively increased male professors’ salaries to close the gap with female professors, but had not done so for the charging party, despite the fact that her Department Chair had conceded that she was “grossly underpaid.” 89 Nevertheless, while these conclusions led the court to deny the University’s motion for summary judgment, the jury ultimately saw it differently. Although there was no explanation accompanying the jury’s verdict, it is interesting to note that the jury found that, although their jobs were equal, the charging party was not paid 80 Id. 81 Id. at 185. 82 Id. at 187. 83 Id. at 188-89 (internal citations omitted). 84 EPA lawsuits therefore put a premium on fact gathering, something that the EEOC typically excels at given its broad investigative and administrative subpoena powers. See, e.g., EEOC v. VF Jeanswear, LP, 769 F. App’x 477, 478 (9th Cir. 2019) (reversing the district court’s decision limiting an EEOC subpoena, holding that “there is no legal basis for limiting the scope of the relevance inquiry only to the parts of the charge relating to the personally-suffered harm of the charging party. Indeed, we have held otherwise. EEOC subpoenas are enforceable so long as they seek information relevant to any of the allegations in a charge, not just those directly affecting the charging party”). 85 EEOC v. Univ. of Miami, No. 19-CV-23131, 2021 WL 4459683 (S.D. Fla. Sept. 29, 2021). 86 Id. at *8. Although the two professors taught different political science specialties, the court noted that they both have doctorate degrees, generally teach the same number of courses at the introductory and advanced levels, and are subject to the same University requirements regarding teaching and research. Id. 87 See Verdict Form at 1, EEOC v. Univ. of Miami, No. 19-CV-23131, (S.D. Fla. Mar. 11, 2022), ECF No. 190. 88 Id. at *9. 89 Id. at *11.