June 04, 2021
  • Prior pay targeted in Google class action lawsuit
  • State equal pay cases can be easier to prove

A California judge’s order allowing a class of 10,000 women to pursue pay discrimination claims against Google Inc. offers a roadmap for other plaintiffs seeking to tackle gender inequity in the workplace, in contrast to other battles against technology giants that failed to gain traction.

The Google case follows a similar ruling last year in a case against Oracle Corp., which also received class action status. The women in that case also survived a motion to dismiss from the tech giant earlier this year. Trials will likely be set for both lawsuits in 2022.

While these suits have moved forward, others have faltered. Workers’ attorneys say that there is still a path to reaching the critical class certification stage, despite a high bar the U.S. Supreme Court set with a 2011 decision that blocked 1.5 million female workers at Walmart Inc. from pursuing their discrimination claims as a group.

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In both the Google and Oracle cases, the attorneys sued under California’s equal pay laws, and targeted the companies’ use of job seekers’ prior pay to set compensation. This practice has been banned in a handful of states, advocates including the U.S. Equal Employment Opportunity Commission have said that because women are historically paid less than men, using their previous salary bakes in pay gaps.

‘Substantially Similar’

Female engineers at both Twitter Inc. and Microsoft Corp. failed to win class-action status for their gender-bias cases and those rulings were upheld on appeal in 2018 the U.S. Court of Appeals for the Ninth Circuit. Nike Inc. is facing an ongoing class action claim in Oregon federal court over pay and promotion practices, as well.

The Twitter and Microsoft cases were pursued under Title VII of the 1964 Civil Rights Act, and not federal or state Equal Pay Act statutes. Unlike the Google and Oracle cases, they also didn’t allege discriminatory pay based on a common policy of using prior salary history to set compensation.

Finberg said in some ways Equal Pay Act claims, both under federal and state law, are easier to certify than Title VII claims, which have a higher bar to prove discrimination took place. California’s law is more employee friendly, as well, he said, because it compares jobs that are “substantially similar” rather than “substantially equal.”

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Class Commonality

There is no question there have recently been additions to some state equal pay laws that make them more protective against pay disparities, said Joe Sellers, a Washington, D.C.-based partner at Cohen Milstein Sellers & Toll, who isn’t connected to the Google or Oracle class actions. Sellers represented the plaintiffs in the Walmart Stores, Inc. v. Dukes class action that went to the Supreme Court.

Sellers said the issue of using prior pay has been gaining greater scrutiny, but courts vary and some are more comfortable allowing employers to rely on that practice to set pay rates.

He said when a company has a common system for setting pay, that is a very important feature essential to class certification—and that’s consistent under federal Equal Pay Act claims, as well.

“The key to the certification of the claims was the common system for setting pay rates and data available for making comparisons for workers holding same or similar jobs and accounting for the factors that otherwise explain pay rates apart from gender,” he said.

Class certification is a key step, and the advanced study that the attorneys put forward for Google and Oracle cases show that an individual plaintiff would likely have a hard time putting together those resources for an individual pay claim.

“The failure to get a class certified, for most members of the class, is the end of their claims,” Sellers said. “Class certification itself is not so easy and courts have been raising that burden over the last 15 to 20 years."

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