Pay Equity Litigation

As new and proposed legislation redraws the boundaries of actionable pay differences, it is becoming easier for plaintiffs to bring discrimination and unequal pay claims. Combined with the growing trend of employee and shareholder activism, focus on ESG, and increased government attention, these changes make managing pay equity an increasingly critical concern for employers. We regularly advise and represent employers, boards, and special committees on these important issues. For more than 40 years, we have successfully defended massive pay equity class actions, and we are consistently ranked as one of the top firms in the field.

Pay differences can be identified today using myriad statistical and non-statistical analyses. As a result, the challenge is understanding, and explaining the differences with legitimate non-discriminatory factors—or developing a mitigation strategy to reduce or eliminate such differences. In any case, the goal is to avoid class-action litigation and government enforcement proceedings, and to allocate resources to ensure appropriate pay for comparably-situated employees. Paul Hastings can help accomplish these goals. We are known for our cutting-edge expertise in defending pay equity investigations and class actions.

We provide the most sophisticated and successful court strategies in the field. This includes innovative procedural approaches to compel individual arbitration, defeating class certification, decertifying classes, discrediting plaintiffs through depositions, winning on appeal, or even stepping in as replacement counsel on the eve of trial. Our unparalleled record of defeating class actions, in motion practice, and at trial, led The American Lawyer to nickname us “Class Action Killers.”

We have defended many of the toughest pay equity class actions across the country. Many clients insist on fighting class actions to deter similar subsequent suits, and, in those cases, we have defeated class certification and have often won on summary judgment. When a different approach is needed, including when employers would prefer to seek early resolution, our record of success in court and the prospect of a long, difficult litigation battle can increase the chances of walk-away dismissals and favorable early settlements. Whatever our clients’ objectives, we leverage our unique experiences and skills to develop a strategy for success.

A Strategic Approach to Managing Pay Equity Risks

• We perform pay equity analyses for employers, including evaluating whether pay differences can be explained by non-discriminatory factors, recommending mitigation strategies and recommending pay practices to help facilitate compliance.

• We advise employers on hiring and leveling practices to avoid pay disparities. We also advise employers on how best to navigate the evolving landscape of state and local pay disclosure and transparency laws.

• We regularly advise boards and employers on their roles and responsibilities with respect to pay equity in the context of changing legislation and key drivers, such as ESG.

Wide-Ranging Experience Advising on Federal Contracts

• We assist federal contractors to comply with their obligations under Executive Order 11246.

• We advise clients on effectively leveraging their Executive Order compliance programs in aid of more broadly-directed diversity and inclusion programs.

• We also advise on pay certification and disclosure laws, testing validation and compliance with the various Executive Orders and regulations impacting federal contractors.