by Savanna Shuntich

This past April, in her first oversight meeting before the U.S. House of Representatives, Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows was asked whether the EEOC intends to return to its brief and controversial practice of collecting pay data from employers. She hedged her answer, refusing to give an outright “yes.” She explained the commission would wait to hear from the National Academy of Sciences on the topic before coming to a decision.

However, Burrows talked at length about the significance of pay data for closing the wage gap for minorities and women, giving the overall impression that pay data collection will soon return. In her view, pay discrimination is easier to identify and combat when wages are made public in some fashion.

State Legislation

Unsurprisingly, legislators at the state level share Chair Burrows’ enthusiasm for tackling the wage gap through pay transparency. Yet newer pay transparency state laws and legislation go far beyond what the EEOC would require by mandating public disclosure of pay information in job postings.

In Washington, legislators recently amended the state’s existing pay transparency law to require that employers disclose a wage scale or salary range along with benefits information in all job postings. The prior iteration of the law had entitled applicants to salary information only after a job offer was extended. The job posting requirement will go into effect January 1, 2023.

Microsoft has already announced it will include salary ranges in all its job postings countrywide by that date. Similarly, the New York Legislature passed S9427 on June 3. Provided the bill is signed by Governor Kathy Hochul, it will require job postings to contain “the compensation or a range of compensation for such job, promotion, or transfer opportunity.” A similar law was already enacted by New York City and will go into effect in the fall.

Interestingly, legislation proposed in California combines the pay range disclosure requirements for job postings with EEOC-style pay data reporting requirements. Employers with 100 or more employees would need to file annual pay data reports with the agency disclosing “the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey” and the median and mean hourly rate “within each job category, for each combination of race, ethnicity, and sex.” This may be predictive of the next generation of bills.

Latest Pay Equity Litigation

While the states move on pay transparency, a number of recent pay equity settlements reflect the ongoing focus on pay discrimination in the courts.

The U.S. Women’s Soccer Team, which had settled its equal pay lawsuit against the U.S. Soccer Federation for $24 million, achieved a much more significant victory in its collective bargaining agreement. In a deal announced on May 18, 2022, the U.S. Soccer Federation agreed to pay its men’s and women’s players equally. As part of the equal pay agreement, the federation will give the men’s and women’s teams the same quality of venues, hotel accommodations, staffing, and other resources but will also include childcare for the women’s teams.

On June 9, 2022, it was announced that Sterling Jewelers Inc., better known as the parent of Kay’s and Jared’s, agreed to pay $125 million to settle a long-running pay discrimination lawsuit that was filed in 2008. Of the settlement amount, $125 million will be paid to the approximately 68,000 female retail sales workers in the class and $50 million will go to attorneys’ fees and costs. The litigation, which also had been subject to an EEOC charge resolved in 2017, moved up and down through the courts on issues such as whether the arbitration agreement banned class arbitration.

Google agreed to settle a pay and promotion discrimination lawsuit filed in 2017 for $118 million. The plaintiffs alleged the company placed women in lower job levels than similarly qualified men, leading to lower pay, and denied women promotions or transitions to other teams that would have better career advancement. The settlement covers 15,500 women who worked at Google in California in 236 job titles after September 2013. As part of the settlement, the company will hire independent experts to review its hiring practices and pay equity studies. The lawsuit was filed after Google settled pay discrimination allegations with the Office of Federal Contract Compliance Programs (OFCCP) for $3.8 million for more than 5,500 female and Asian employees and job applicants.

Speedway LLC agreed to pay 4,000 female general managers $12.3 million to settle an Equal Pay Act lawsuit that alleged male general managers were paid more because of their sex.

Savanna L. Shuntich is an attorney with FortneyScott in Washington, D.C. Savanna’s practice includes representation of individuals and companies in employment litigation matters before federal and state courts and administrative agencies. She handles discrimination and retaliation cases under Title VII, the ADA, and other applicable federal and state civil right laws, as well as contractual disputes between employers and employees. You can reach her at sshuntich@fortneyscott.com.