Developments in Equal Pay Litigation

TABLE OF CONTENTS	VII
EQUAL PAY LEGISLATION	1
A. The Federal Equal Pay Act And Title VII	1
B. State Equal Pay Legislation	2
C. State And Local Pay Equity Initiatives	3
1. State And Local Salary History Bans	3
2. State And Local Pay Transparency Initiatives	5
CASE LAW DEVELOPMENTS IN 2020 AND EARLY 2021	7
A. Proving The Prima Facie Case	7
1. Establishing A Wage Disparity	7
2. Showing That Work Is “Equal” Or “Substantially Similar”	12
B. Significant Class And Collective Action Decisions	18
1. Recent Cases Involving Collective Action Certification	18
2. Recent Cases Involving Class Action Certification	22
C. Disproving Discrimination: Employers’ Affirmative Defenses	24
1. Proving A Factor Other Than Sex	25
2. The Use Of Salary History As A Legitimate Factor Other Than Sex	28
3. Other Affirmative Defenses	32
4. Pretext	33
D. Other Important Substantive Decisions Impacting Pay Equity Litigation	36
1. Retaliation Claims: Establishing The Causal Link	36
2. Arbitration Agreements	38
3. Proving An “Establishment”	42
4. Who Is An “Employer” Under The EPA?	43
5. Statute Of Limitations And Willfulness Issues	46
DEVELOPMENTS IN EEOC ENFORCEMENT OF EQUAL PAY ACT CLAIMS	47

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