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For the first time since 2016, Equal Employment Opportunity Commissioner Victoria Lipnic addressed the annual Industry Liaison Group meeting, which was held in Wisconsin this year.
Commissioner Lipnic addressed two pressing employment law issues: pay equity and age discrimination. Specifically, Lipnic noted the looming September 30 deadline to comply with the EEO-1. Compliance requires most companies to submit payroll data dating back to 2017. Lipnic noted that such collection “is not in any way easy,” but that is “what a federal judge has ordered.” Lipnic also observed that most Millenials were just a few years away from Age Discrimination Act coverage.
On a final note, during the subsequent Q&A session, Lipnic told federal contractors they should “lead the way in recruiting for populations you traditionally have not gone to before.”
“Both pay discrimination and age discrimination are usually good examples of disparate impact discrimination,” explained Chicago employment discrimination lawyers Arthur R Ehrlich and Jonathan C. Goldman. “Company policies in these areas may appear to be neutral, but if they disproportionately affect a protected classification of workers, they are illegal.”
Companies may not intentionally set out to pay women less than men, but more often than not, there is a significant pay gap. Even if there is no “smoking gun” evidence of discrimination, a legal remedy may be available.
Some companies over-rely on salary history information. They believe there is nothing wrong with using a candidate’s past salary history to set a current salary level. But many women were underpaid due to their gender, whether intentionally or not, in their prior jobs. As a result, their salaries will continue to lag behind their male counterparts, and the disparity increases over time. This is why many states are now making it illegal for an employer to ask an employee about an their prior salary history.
Other companies use job history to set salary, and this calculation could adversely affect women as well. For example, blue-collar workers, like miners, generally earn more than white-collar nonprofessional workers, like clerks, secretaries, or administrative assistants. Blue-collar workers are often male, while many white-collar nonprofessionals are female.
Pay discrimination victims are generally entitled to back pay, reimbursement of legal fees, lost benefits, and other damages, including perhaps damages for emotional distress if they prevail at trial.
Age discrimination cases are sometimes harder to win today than they were in the 1990s. The Supreme Court has ruled that age must be the sole factor, as opposed to only a motivating factor, in the action taken against the employee. For example, the corporation’s decision to terminate or demote an older employee may have been based partly due to age but also based on a performance issue, even if the performance issue was not significant. Under these facts, assuming there was a real, as opposed to a fabricated performance issue, the older worker’s dismissal may not have violated the Age Discrimination Act.
For this reason, the EEOC may not pursue age discrimination claims as often as other actions. But an assertive attorney may still be willing to pursue these claims on the employee’s behalf.