Hello, my name is Andrew Lieb, and I'm here to help you all learn about leveraging the Equal Pay Act, after women's soccer's big settlement. I don't know if you saw what happened with women's soccer, but it blew my mind. And as someone who litigates in the field of equality, discrimination, civil rights, my head was spinning when I saw the numbers, and I thought it should change the way we practice in some ways, by going over the decision. If you don't know, the Equal Pay Act is one of the biggest topics we're talking about on the federal level these days. But make no mistake, there is state and local laws that are very, very important to leverage in addition to the federal Equal Pay Act, which is, I would say, one of the most politically charged issues, as well as a litigious issue, which you'll find when you hear this course. This course is gonna get you ready, not just to deal with women's soccer's big settlement, they're done. They settled, they settled, but what's gonna happen next for your client? Like I said, my name is Andrew Lieb. I'm the managing attorney of a law firm called Lieb at Law, P.C. We're located in New York. I'm licensed to practice in Connecticut, Colorado, obviously, New York, the federal courts. I have a partner who's licensed in New Jersey, but as you know, you can go to all states on a federal claim, and I'm happy to help you. if you have questions on your clients and take your referrals. You can reach me at 646-216-8009, if you have questions. or you can just email me at [email protected], happy to help you and support you. As I'm coming into the studio to record this course, I'm reading the headlines, and I'm seeing this is gonna blow your mind. Google now is paying up to 118 million with a M, to settle class action on gender discrimination lawsuit that covers about 15,000 women. We're seeing this become the headline over and over and over again. Are you paying your staff differently based on their gender? Gender paid disparities. Historically, we know that men were paid more. It's just a historical knowledge. As we move into the future, you're seeing companies make efforts on what's called diversity, equity and inclusion. You're seeing efforts made to let women go through the glass ceiling. We're seeing a future of equality. Nonetheless, you still have legacy employees. Nonetheless, you have legacy employers, people who don't understand and don't care, and they don't understand that if you're giving people the same job, they should get the same compensation. Well, I'll tell you what, after you pay 118 million dollars, you probably start carrying Google. And when you hear what women's soccer had to deal with that as well. So what are the topics say? Women's soccer is the first one. I'm gonna give you some statistics of interest. We'll get into the law. And then my favorite topic is damages. I find as a litigator, that your clients, they wanna know, can I do this? Can I do this? Can, can, can, but the real question is, should you do this? You have to look at the measure of damages, either on the plaintiffs or defendants side; the cost of litigation, and whether it's worth coming to a resolution, I take lots of cases, but just today, I've turned down five cases because the margins didn't work. You can't set yourself up to fail. So we have to look at everything together, and I'll tell you, why is this topic so interesting to me? It's so interesting to me because it's in the media. And what I think, this is my deduction, my deduction is that women's soccer resulted in the settlement it did because it is in the media. There's a PR component that people miss. And if you look me up, you'll see that I'm on TV all the time. I've been on ABC, Fox, CBS, News 12, Picks, Newsy, NewsNation. I don't know, a lot of channels. And what I've learned is being a media analyst is that you have to have this on two fronts when you're going forward. That being said, I hope you read your state's ethics rules, because where I'm located primarily in New York; as an attorney, in a case, you can't really comment besides what the pleadings are that you submitted. So check your ethics rules. But this is the type of case that we need to understand how the media's gonna pick up on it, because the PR, public relations, can change the dynamics of the case and the settlement drastically. Let's start off at the beginning. Women's soccer, this is what got me interested in teaching this topic. In my practice, I do lots of discrimination cases. That's the big one. And you would think in discrimination, we're talking Title VII of the Civil Rights Act. You would think we're talking about the Fair Housing Act, or Title IX, or Title VI when we're dealing with education. But women's soccer got me specifically interested in Equal Pay Act. And that's interesting because when you deal with employment litigators, and I have a lot of them that I deal with on a day to day basis, employment litigators like to talk about two different things. There's two tracks. So you really see wage and hour litigators, Fair Labor Standards Act, and discrimination litigators, like Title VII. You see that a lot, or the Fair Housing Act, et cetera. What's interesting is the Equal Pay Act is part of the Fair Labor Standards Act. So that's more of a wage and hour-type of conversation, it's the overlay conversation. So when myself and my partners were talking, some people generally do wage and hour and some people generally do discrimination. Equal Pay Act is both. Women's soccer. Let's talk about that. Here's what happened. The US National women's soccer team got a 24 million dollar equal pay settlement. And yeah, I know. I just told you, Google got 118 million, but you have to put into perspective that Google is, I don't know, the richest company ever. It just Google, like they control the internet. Women's soccer is against the national team, like, this is like not the same type of money, come on. So what happened is, back in February, they made this settlement for 24 million dollars, and it was contingent on a new collective bargaining agreement being reached, and you might have saw on the news that in May of 2022, there was a new collective bargaining agreement. But let's take you back. Let's go back to the beginning. Before we go forward, we have to go back. We have to know what happened. Let's take you back, 2019. I want you to know, before 2019, there was already equal pay claims going on and lawsuits, but this the current one. The current lawsuit that resulted in 24 million dollars plus a new collective bargaining agreement. Let's take you back. In 2019, 28 players sued for 66 million dollars. They got their class action certified. And if you are a litigator, you know that getting that certification order changes the risk dynamic. Remember I told you, damages matter. You need to understand how risk goes for plaintiff and defendant, and getting a certified class is like changing a strategic assault to having your entire naval fleet in front of the defendant. They brought two causes of action. The two cause of action, which we're gonna go into great detail in this course are the Equal Pay Act, which is 29 U.S.C. 206, and Title VII of the Civil Rights Act of 1964, which is 42 U.S.C. 2000e. What's interesting to me, just as an aside, is that if you do discrimination law, you'll notice there's different Civil Rights Acts, and you gotta get the right year. When we're dealing with employment litigation, that's the EEOC stuff, that's the Civil Rights Act of 1964. So there's two different causes of action. One is, gender-based discrimination, sex discrimination under Title VII, and unequal pay based on gender, under the Equal Pay Act. But here's where it gets interesting. The case was brought in 2019, and yes, I said, they got class certification; they brought it as a proposed class and they got certified, but in 2020, the case was dismissed. "Wait a second, Lieb." "Lieb, you just said they got 24 million dollars on a dismissed case?" They filed the appeal. Practitioners. If you can make a non-frivolous appeal, why do you lay down after you lose? Why do you give up after you lose? They did a appeal in July, 2021, and they didn't get the appeal decided, they settled after the appeal. So just to be clear, women's soccer got 24 million plus a new collective bargaining agreement on a case they lost, just by filing an appeal and settling on that, PR, public relations. I tell my clients, and I don't know about you guys, you can't just go to the media. You needed your clients' consent, informed consent based on your rules of professional conduct, but I tell my clients that the initial consult, if I'm gonna be a plaintiff's attorney, and we do both plaintiff and defense, I represent companies as well. But if I'm gonna be a plaintiff's lawyer, the first thing I do is I say, "We need to go to the media at the beginning." And here's the thing, I want you to know this, my media tip for y'all, media generally does not care about your lawsuit, even if it's a high profile lawsuit, unless you tell them before you file. Meaning, they don't want the case when it's stale, when you filed three days ago, they want the case in advance. That decision, that informed consent needs to be made at the outset. Anyway, some facts. Here's what was going on that made the women sue. They said, men and women both need to pay a 20 friendly matches, a minimum, a minimum of 20 friendlies, you know, in soccer or football, if you're European. They call it "football" in Europe, I know. We have American football, very confusing stuff. But I imagine at this point, now that we've all been watching that great show on HBO, what is that called? That great show on HBO, and we've now all learned about, is HBO or Showtime? We've all learned about English soccer, we have football. So anyway, they have to play friendly. So that's a type of a game in soccer, where they have to go play these friendly matches. And here's what happened. The women got... It's "Ted Lasso," if you haven't seen the show, go check it out, it's good stuff. So the friendly matches, the women, they have a very hard pressure thing, why? They got a win to get paid on a friendly, as a bonus. They get $1,350 if they win. Whereas the men get 5,000, irrespective if they win or lose. So the loser men get 5,000, only the winner men get 1350. Now, we learn in this case as we go on that the women actually did get a base pay, an annual pay of $72,000, whereas the men got nothing. But here's what we learned in the case. Let's assume, for argument's sake, under the men's collective bargaining agreement, the women's collective bargaining agreement, they're both different collective bargaining agreements, let's assume that the women got the max fee they could get, they would still get $1000 less than the men. It seems sweeter to be a man under these agreements, the men get paid more, that's what the women said. And not only did the men get paid more on the friendlies. What we learned in this case is that the men also got $15 more than the women for their per diem rates to cover their travel cost, their cost in international venues. So the women are saying, I don't know if they're angry, but they're feeling... "Angry" is a bad word when you're dealing with sex, gender discrimination, it's got negative connotations, you know? I'll tell you what they feel like. They're feeling discriminated against. That's what they're feeling. Like, they're getting taken advantage of. That's how they feel. I need to point out to you though, that both the women and the men both freely fairly without undue influence, without fraud, they both negotiated their respective CBAs, collective bargaining agreements. So it's kind of questionable, if you think about it, like, if you were the defendant, wouldn't you be saying, "Well, you agreed to this. Why'd you agree to this?" You didn't need to agree to this." Aren't we always hearing from the National Labor Relations Board? Aren't we always hearing that a union has power? You have power. Anyway, here's the case I want you guys to know about if you know the soccer player, she's pretty famous, Morgan. Morgan, the US Soccer Federation. So we're not talking Google right now, we're talking US Soccer Federation. This lawsuit goes on in the Central District of California. I believe our handouts have a copy of the actual decision. The decision on the summary judgment motion that dismissed the case. That being said, that being said, I give you the hyperlink on the screen, and why do I give you the hyperlink? Because I like electronic stuff. It's just cleaner that way. And I give you the case number, and I show you where the Pelle case number is in the Ninth Circuit. Here's what we learned from the case. And you learn a lot just from reading this dismissal. I would suggest you, if you wanna do Equal Pay Act litigation, this dismissal is very, very telling. It tells you about the, what do you need in a prima facie case. You go to... Someone calls you up, "I think that I work at ABC Widget Corporation, Inc. Have you ever noticed there are always Widget in law school examples. I work in ABC Widget Corporation, Inc, and I believe that I'm doing substantially equal work as a woman." I'm a man, I obviously, I don't know if you can tell from my voice, I identify as he, him, his or jerk. You can call me jerk. That works too. But if you go with, "I'm a man and I do substantially equal work as the women. And we worked under similar working conditions, but the women were paid more than me." There's only three elements of a prima facie case. That's what I'm trying to get across. The first one is substantially equal work. The second one is similar working conditions. And the third one is unequal pay. In this case, we have women's national team perform substantially equal work as the men's national team. Now, I will tell you that the case where we deal with the US Soccer Federation as the defendant, disagrees with that. The women's national team worked under similar working conditions. I will point out to you that, even though we're not gonna do it here, there was a Title VII discrimination case as part of it, there's... I told you there was two different cases going on: the Equal Pay Act and the Title VII. Title VII, they actually had two cases, so there's three total Equal Pay Act, Title VII on unequal pay discrimination, and then conditions were also claimed to be discriminatory. It's outside the scope or breadth of this conversation, but if you wanna get into that type of discrimination, understanding about the working conditions, you can read the decision which I gave you. But anyway, back to where we are equal pay claim. Women's national team performed substantially equal work as the men's national team. Women's national team worked under similar working conditions. And men's national team players were paid more. That's all you gotta prove. Imagine how easy of a consult that is. Substantial equal work, substantially, or just similar working conditions, and paid more. Now, I will tell you the statute, and we're gonna do this a few times going forward. so it stays into your head, but the statute talks about defenses. And in the case, the women's soccer case, they didn't actually get to these defenses, although it's good to know it for yourself, So I tell you, payment was made pursuant to a seniority system. So for example, if you showed all the men were there for longer than the women, and that's why they were paid more, a majority that shifted the mean, that would be a good defense, a merit system. You have better accolades, accomplishments. Number three, a system which measures earnings by quantity or quality of production. We always say in a law firm, he or she who builds the most, or gets the most wins makes the most money, except for the person that brings in the business. But that's another story for another day. But you notice quantity means builds this the most. Quality means, did you win? A differential based on any other factor other than sex. What to get from these possible defenses is you have to have objective bases, that's what? A differential based on any other factor other than sex. You need objective bases, not just, "I can pay her less, so I will." Anyway, in this case, the real issue goes back to the beginning. Number three, men's national team players were paid more. Why are they paid more? The court takes a big conversation here and says, "Yeah, we understand about these friendlies that we talked about, where the men were paid 5,000." Remember they were paid 5,000, just to go back to it. The men were paid 5,000 as opposed to 1350. And then you could put in the $72,000 a year, but what is... Can you take one bonus, one bonus in isolation? Here's what the court says. Here's what wages mean. Wages mean all forms of compensation, irrespective of the time of payment, whether paid periodically or deferred until a later date. And whether called wages, salary, profit sharing, expense account, monthly minimum bonus, uniform cleaning allowance, hotel accommodation, use of company car, gasoline allowance, or some other name. That's the keyword, some other name, the name doesn't matter. Wages also include fringe benefits, which include medical hospital, accident, life insurance, and retirement benefits, profit sharing, and bonus plans. and any other concepts. Here's the thing. I'm an employer. I don't know if you guys are employers. I'm the managing partner of my law firm. When someone says, "What is the salary?" I say, "We don't worry much about salary. We worry about total compensation package." Why do we worry about total compensation package? Because the wages definition, right here under equal pay claim, will bite us in the tuchus. If we deal with anything else, we have to say, it's the total compensation, all your wages, not your W2 every two weeks, it's what your takeaway is. Remember again, in this case, they were saying the friendlies, the friendlies, the friendlies. They didn't just say the friendlies, we had something else. We had the per diem rates for the athletes cost international venues. They said, that's not fair. They said, that's not fair. But guess what? The court makes note, it's not total pay, it's rate of pay that matters. It's not total pay, it's rate of... Wait, didn't I just say total compensation? Yeah, but what happens if one person works a lot? Hey, here's how the court explained it. It could lead to an absurd result where an employer who pays women $10 per hour and a man $20 per hour would not violate the EPA as long as the woman negated the obvious disparity by working twice as many hours. So when I said "total compensation package," it's total compensation package divided by work required. You see rate of pay. How much are you getting paid for rate on average? What are you getting paid to do your job? That's what we need to know. The women said, though, the women said, women had to be much, much more successful than the men to make up the difference in their rates of pay. Remember the women had to win the game. The men didn't have to win the game. The women had to win. The women said, "This is unfair. This is discriminatory. This is a problem." Does it matter about success? Does it matter? Does it matter that they had to have a higher quality? Remember that was a defense. But it would be a defense only if that made the man make more money. But the women, the plaintiff now said, "Hey, it's not only this. It's not... The man could have a lower quality and get more money because they got paid the 5,000 irrespective of a win loss. Perhaps if the men only got paid on a win to get to here, then that would've been one of the valid defenses. But the women said, to get our lower number, we had to be much more successful than the men. And if you've been watching soccer over the years, international soccer, the women's team has been very successful. Here's what happened though, on the equal pay, the defendants, the defendants, the defendants, the US Soccer Federation, they won. Here's what the court told us. The women's national team paid more on both cumulative and average per game base than the men's national team. That's interesting. So cumulatively, and on average. While the women were paid lower bonuses, it would've made more under the men's CBA, that's what the women said. "If we would've used the men's CBA, do you know how many shackles, how many dollars, how many coin we would've got? Would've been like Scrooge McDuck." But the court goes out and says, "Hey listen. But if the men use the women's CBA, they would've paid even more. They would've made even more money." And here's another interesting one, didn't I tell you all that the women negotiate their own collective bargaining agreement? This is not what happened. The women... Men and the women did it. Did you know that the women were offered the men's CBA? The same pay to play structure as the men, and they said, no. "So how can you complain now? Isn't it speak now or forever hold your peace. We offered it to you." Let's shift topics. Almost never, and I'm gonna show you when, but almost never, I'll show you when a little while, will you do an Equal Pay Act claim without also doing a Title VII claim? You gonna see they rise and fall together. And as you know, if you are a competent litigator, you put as many causes of action, which will be non full of frivolous in the complaint and you deal with it later. So a Title VII claim, unlike the Equal Pay Act, has four causes of action. The first one is, do you belong in a protected class? Sometimes when we talk about this, we owe it to, you're protected class, you're protected class, you're protected class. Are you a man? Are you a woman? That's one form. But we talk about this much more often in society when we talk about race, religion. We talk about color, disability. You know, most of the claims under Title VII that I see, most of the discrimination claims I see are disability. That's the biggest one that we're seeing problems with. But being a protected class is not just your sex, it's also your gender. And we learned that from a a Title VII case called Bostock. That went to the US Supreme Court, where we learned that sex includes gender identity, transgender status, and also sexual orientation. Anyway, first one, belonged to a protected class. I would argue everyone belongs to a protected class, why? Color's a protected class. Are you see through? Unless you're translucent, which I guess would also be a color, you're always in a protected class. So you have to say what your protected class was. Women who were in this protected class were performing their job adequately. If you don't perform your job adequately, you can't say the next one that you suffer to the adverse employment action, because it's not because of your protected class. So again, you perform your job adequately, and there was an adverse employment action. But the fourth one, similarly situated individuals outside of the protected class, in this case, women with a protected class, so men would be the similarly situated people, were treated more favorably. Or other circumstances surrounding the adverse employment action gave rise to an inference of discrimination. Let's back up again. Any Title VII claim, I want you to extrapolate it out, you're dealing with someone that you're just doing a lawsuit for based on their skin color. We're not even dealing with sex, same thing. A prima facie case for Title VII is that, someone's in a protected class, they performed their job adequately, they suffered an adverse employment action and similarly situated people outside of the protected class were treated more favorably. Or there's another circumstance that creates an inference of discrimination. Let's put it in plain English. When we talk about Title VII, it's real simple because we get consults all the time. "I was harassed at work. I was bullied. This employer's wrong." We get in the school, "My kid's getting bullied." You always have to say, why? To a regular discrimination case it has to be, "I'm bullied because I'm in protect a class. I'm given an adverse employment action because I'm in protected class. I was denied housing because I'm in a protected class." You need the, "because of". That's the key. But to be clear, under Title VII, it doesn't have to be direct evidence. Circumstantial evidence will do because rarely do you have the smoking gun. Now, when we talk about pay disparity, you do have a smoking gun because you'd yet to check that all the people of one sex, and all the people of another sex, particularly in a job like playing on a soccer team where there's not all different jobs and different levels and different categories, you see this with big business is really the key, because they have so many of the same people that do the same function. It's easy to tell when you go through the data, who's paid less and who's paid more. So Title VII claim again, member of a protected class, performing their job adequately or better, suffered adverse employment action, similarly situated people treated more favorably, or other circumstances give rise to an inference of discrimination. In a Title VII case, they have a different type of defense. In this case, in the women's soccer, they didn't get there, but you should know it. All the defendant has to say is, "I have some," not, "the some," legitimate non-discriminatory reason for the challenged action. Once you give a legitimate non-discriminatory reason for the challenged action, you as the defendant meet your burden. Plaintiff no longer has a presumption. The only way the plaintiff wins, it's a burden shifting framework, you start off with the plaintiff making their prima facie case, I showed you how the four elements, then the legitimate non-discriminatory reason for the challenged action. And we go back and we say, "Hey, now it's on the plaintiff. The burden's back to the plaintiff." Legitimate reasons offered by the defendant. "We're not, it's true reasons, but pretext," I call this the baloney, the baloney rule, the baloney rule. See, I should make up these rules. They make these... Who says pretext, unless you're a lawyer. Here's what it goes. The first one starts off and says, "I adequately performed. And I was treated bad because of my protected class acts." No, no, no. There's a legitimate reason. Not discrimination. No, no, no, no. Your reason's baloney. That's the case right then and there. But guess what? In the women's soccer again and why I'm so astonished by this, they're getting 24 million dollars in a new collective bargaining agreement where the summary judgment was given to the defendants, the summary judgment was granted by the court, summary judgment to US Soccer Federation on both the equal pay and also for the exact same reason on the Title VII. According to the court, they weren't paid less on either a game or killing of basis. And why? Because you can't look at bonuses in isolation. You have to look at all wages and look at the work that was performed to get there. Isn't that the key? Why do I make such an emphasis on here? Here's the question I have. So what on earth happened to get this settlement? Imagine being a plaintiff for defense attorney, you go to summary judgment, defense wins, cleans house on summary judgment, wins on the equal pay, wins on both Title VIIs. We didn't talk about one of them, but on both of them. Case gone, goodbye see you later, adios. And then somehow, we go from there, we go from there to settlement of 24 million dollars. Let's talk about the statistics of interest, because I think that you have to combine in equal pay or a Title VII case, these days, with a public relations campaign. You need media, particularly, particularly when you're dealing with big business to combat their PR apparatus, because for them, on their earnings call, when they have to explain the lawsuit and explain the wrong, and explain the talent disparity, that's worth more than their exposure. Do you think that Google, I wanna know, I wanna know what you all think. Do you really think that Google losing 118 million dollars makes the slightest dent in Google? Like for me, if I lost that kind of money, I don't even have that money to lose, I won't even know how to lose that money. I can't count that high. For Google, it's probably their electric bill, I'm just speculating. But do you know how many buildings they own? Maybe their electric bills more than that. So we have to look at multiple components of how this affects recruiting talent, how this affects retention of talent, how this affects customer purchasing, customer attention. These companies, like Google or the Soccer Federation, are interested in a new type of business. When we were young, wild and free, when we were young, you tried to sell a product. Now people are all trying to make their product into a service because you need recurring revenue. It's about continue to bill. How do you think the soccer team makes money? Because you keep watching, they get more cable contracts, they get more dollars, more sponsors. To get there, you have to think about the statistics. Statistics of interest. Did you know, in 2020, women earn 82 cents for every dollar earned by a man, according to the US Bureau of Labor Statistics. 82 cents for every dollar. And for the men out there, just remember how much money you made last year, assuming you make the same amount this year, and your gas is more expensive, and your eggs are more expensive, and life is more expensive. Do you feel like you're much poorer than last year? Just so you know, that was women's experience last year. Just so... You know, all these people are complaining about inflation, but a woman who makes 82 cents on the dollar of the man was feeling how you feel now. And now they're getting hit again with more infla.. 82 cents on the dollar is significant. According to Pew Research, that's 84% of men's earnings. They're getting eight, I know, 82 cents would be 82%, I got it, but different stats, different stats, Pew Research versus Bureau of Labor Statistics. Either way, you're getting the idea. Let's average it out at 83% at the end of the day. The good news, women ages 25 to 34 earn 93 cents on every dollar. "Whoa, whoa, Lieb, did you just really say that women making less than men is good news?" Well, everything's context. What I'm saying is that, if overall women are making between 82 and 84, but younger women, emerging women, newer professionals, 25 to 34 age group are making 93%, that means that in future generations, we can see the curve going in the right direction. We often think about things like childcare. And we think about things like being on leave for pregnancy. And we talk about this being societal burdens, but if you had more women making more money in the workforce, and you had more women making the full amount and being incentivized to stay in the workforce, think about that additional tax dollars to go into the pool in the first place, and how much more money the gross domestic product of our country would be doing? Everything's thought about in isolation of the now, me, I don't want, unfair, but we have to make macro decisions. And the point of the Equal Pay Act is not just for the woman that's disadvantaged. The point of Title VII is not just for the individual disadvantage, but for society. How do I know that? Because punitive damages are available too, we're gonna talk about that as we go forward. Let's start off with the law though. Equal Pay Act of 1963, just to remind you when we were dealing with Title VII, do you remember we were dealing with Title VII a second ago? We were dealing with Title VII, I made a big stink, I told you it's from 1964. Isn't that what I said about Title VII? So now that we're at the Equal Pay Act, and I think this is kind of interesting, we're on the Equal Pay Act and we're gonna do Equal Pay Act of part. And I think this is the key, Equal Pay Act of 1938, which is before, I mean, Equal Pay Act of 1963 is part of the Fair Labor Standards Act of 1938. So what happened is Fair Labor Standards Act was amended at 29 U.S.C 2060D. And we have what's called the Equal Pay Act. The summary is that it prohibits sex based discrimination between men and women. In same establishment, that means the same job, who perform jobs that require, and this is the key to remember, substantially equal skill, effort, and responsibility under similar working conditions? You have a small business, it's a very hard case. Why is a very hard case for a small business? How many people in that small business, same establishment, perform the job that requires substantial equal skill, effort, and responsibility in the same working conditions? This is really a law about big business, which is interesting, and we'll show you in damages because under Title VII, I know I'm switching back and forth, but under Title VII damages are capped based on the size of the business and damages go up as the business goes up. Anyway, the point being, you can't bring the case unless there's equal skill, effort and responsibility. And I say that because when you're screening cases, that's the number one reason why we say no to a case when they come to our law firm because we go, "You don't do the same job, you have different burdens, you have different people you supervise, amounts of people, different efforts are required, you have different technical abilities." Like, that's what we gotta ask. You gotta flesh out those three, like you're in a deposition with your prospective client, if you're a plaintiff's council. Anyway, there's four subsections of the Equal Pay Act. Equal Pay Act, again, part of the Fair Labor Standards Act, which is wage and hour litigation. And mind you, you have to look at your state's wage and hour litigation because places like New York, the state law is much more favorable to a plaintiff than the federal law. Anyway, no employer having employees shall discriminate, notice that's a word from Title VII, within any establishment in which such employees are employed between employees on the basis of sex. And remember the word "sex" is broadly defined based on that Bostock decision to include sexual orientation and gender identity by, I know it was in Title VII, but you could extrapolate out. On the basis of sex by paying wages to employees in such establishment at a rate. Does it say total compensation? No, uses the word "rate." That was the key to the women's soccer dismissal. A rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs, that performance of which requires, remember the keywords when you're checking out if there's a case, equal skill, effort, and responsibility, and which are performed under similar working conditions, it goes on. Except where such payment is made pursuant to, I told you that they were gonna go over the exceptions. We did them before I'll do it again, a seniority system, a merit system, a system in which earnings by quantity or quality of production, or a differential based on any other factor other than sex. Provided, provided that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provision of the subsection, reduce the wage rate of any employee. That's kind of interesting. You can't make the benefited employee go worse, you can only make the person go up. The defenses, again, one, two, three, four require you to have an objective metrics of how you're dealing with; it could be seniority, merit, quality, quantity on earnings, something else, but it's really objective metrics to explain why you're paying different. And I guess that kind of goes back to the equal skill, effort and responsibility, are you having different skill, different abilities of effort and different about responsibility? All goes together, like, seniority would be, I guess, the main exception, because seniority is just how long you've been there. Anyway, subsection two says, no labor organization or its agents representing employees of an employer, having employees subject to any provision to this section, shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph one of the subsection. I did that real fast, like the micro machine guy. Why'd I do it? Because it's just saying, a labor organization or it's employ agents that, remember, what do women's soccer do? They negotiate a collective bargaining agreement. So they had representatives. And it's saying they can't cause or attempt to cause such an employer to discriminate. Number three, for purposes of administration enforcement, any amounts owing to any employee which have been withheld in violation of the subsection shall be deemed to be unpaid minimum wages, an unpaid overtime compensation under this chapter, remember that. Why do we want it to be unpaid minimum wages and unpaid overtime compensation? Because that's how you get into the liquidated damages, the two times damages, the liquidated damages provision of the Fair Labor Standards Act. That's the wage in our attorney goldmine. Number four, as used in the subsection, the term "labor organization" means any organization of any kind, this is referring to subsection two, or any agency or employee representation committee or plan in which employees participate and which exist for the purpose in whole or in part of dealing with employers concerning grievances: labor disputes, wages, rates of pay, hours of employment or conditions of work. So it's kind of an interesting, the women's soccer dealt with all four subsections because they had a labor organization, that's the point of a collective bargaining agreement, and they nonetheless lost. But one, let me go into more of the things you need to know about the Equal Pay Act. It's kind of interesting statute of limitations for two different reasons and then one caveat to give you. We start off with the two different reasons and then we'll go to the caveat. Reason number one is that it has two different statutes of limitations. There's a two-year statute of limitations, except if it's a will for violation, there's a three year statute of limitations. What that means for you, plaintiff's council that are thinking about taking a case is unless it's egregious, go with two years, and if it seems egregious, then consider three years, and you might be saying if you're defense council, well, egregious doesn't necessarily mean willful. Yes, but you're doing a risk assessment on your initial consults. and if you say, no, they'll go to someone else, so you have to see how naughty it sounds. But here's why we like Equal Pay Act more than Title VII, and as a discrimination litigator, that's a hard statement to say. I like Title VII more than Equal Pay Act, in theory, because Equal Pay Act's part of the Fair Labor Standards Act, and that's my wage and hour colleagues, whereas I like discrimination. But every practitioner knows that you have a deadline to file with the EEOC, Equal Employment Opportunity Commission, when we're dealing with discrimination in states like New York, you get up to 300 days post the problem, it could be down to 180, but the point being Equal Pay Act does not require an EEOC filing. So, if someone comes to you after a year and they never filed with EEOC, you're out of luck with Title VII, you can't do Title VII, Title VII's poo, poo, goodbye, but you can still do Equal Pay Act. And if you show it's a willful violation, you get to three years. Now, I told you there's a caveat. I told you there's a caveat, gets more interesting. This is from a Lilly Ledbetter Fair Pay Act, ready? Here we go. A discriminatory compensation decision occurs each time compensation is paid pursuant to the discriminatory decision. In English, every time they're paid less, it accrues again. Now, for damages, the SOL matters, why? Because if you're out of the SOL, you can't get those back damages, you want those back damages. So while they might come to me and they might say, "Well, it happened, it wasn't for purposes of my illustration, it wasn't willful." And they come to me a year and 11 months and two weeks, and they go, "Well, I heard from my friend that it's every violation it's gonna be." And I go, "Yeah, but you get paid every other week." And mind you, there's certain professions where you gotta be paid every week, I guess it's not professions, occupations, you have to be paid every week, so you gotta check those two on the wage and hour litigation, we can make big money on that if they're paid the wrong amount to period, or not paid frequently enough according to what statute says, but going back here, I say, you're paid every two weeks because they were in this scenario and it was legal, and I'm just making up by my head, so you can't tell me my example's wrong since it's my make believe, you get your own make belief. So a year, 11 months, two weeks ago, I was not paid equally with the men and I'm a woman, or with a woman and I'm a man, and they say, "I wanna sue." And I say, "The problem is because you're coming so late, you're coming so late, I don't have enough years to go after damages unless we can class this up with other people. Because for just you, we just copped out a lot of your damages, didn't we? And why else? Why else? Because we don't get that same type of compensatory damages available under Title VII," which we'll hit in a little while. Anyway, let's shift to Title VII real quick. Let's shift to Title VII. Now, let's stay here, let's stay here. The prima facie case, one more time, under Equal Pay Act. Let me tell you, I want to go to Title VII, I want to go to Title VII, because I'm really into those compensatory damages, they're interesting stuff. So skip that in your mind and we'll get there. But finishing Equal Pay first, the prima facie case, remember there was three elements, substantially equal work, similar working conditions, and paid less. Here's how they put it though. She was doing substantially equal work on the job, the performance of which required substantially equal skill, effort, and responsibility, those are your testers, when you're having someone that comes and you talk to them. You wanna make sure that it's skill, effort and responsibility. As the job held by members of the opposite sex, that'll be the number one reason that you say, no. Now, substantial equal doesn't mean a hundred percent equal so there is some flexibility there, but it has to smell like the other one. The job was performed under similar working conditions. You work at a spa, overlooking notion, and you work in a factory, not the same. She was paid at a lower wage than members of the opposite sex. Remember the three elements of the COA for the prima facie case, and the four affirmative defenses, bonafide seniority system, merit system, system which measures earnings by quantity or equality of production, differential based on any factor other than sex. Equal Pay Act. I think the biggest interest of the Equal Pay Act for me, for me, now, we could say, when we're going through it, is it skill, effort, and responsibility? Do we have that? Because that's a much more narrow longing that we have to go through than the broad statement of Title VII of just saying, hey, with Title VII. We just have to say with Title VII, "Hey, because of sex, they were treated differently." That's all you have to do. You don't have to do the whole same thing that you were going on there. But, but the interest for me with the Equal Pay Act and the interest for you with Equal Pay Act should really not come down to re-even liquidated damages, which are interesting. But the main interest is that statute doesn't require the EEOC filing. Now, I will point up when you deal with discrimination, places like New York, that have the New York State, human rights law at Executive Law 296, you'll see that they don't have the EEOC requirement either. So there's a way to just bring a state claim in those places, but if you're in a place that doesn't have state employment discrimination law, and mind you, education discrimination law has been applied to employees of an educational institution, so that's another conversation that you could do in another angle altogether, but the big thing on the federal level, assuming there was only a federal level, is that the EEOC has this 300 day or 180, when you're going there, requirement, whereas you have two years, maybe three years and new accruals, every missed payment with the equal pay, which makes it more interesting. Let's shift to Title VII, though. Title VII of the Civil Rights Act of 1964. Remember that's a 42 United States Code, 2000e. The pros, there's pros, there's pros, there's positives that you have to go over here. You need improve that job is substantial equal to that of a higher paid opposite sex employee. Remember it's much more because of, that's all it is. You treated me differently because of my sex, full stop. In Title VII, you don't need to prove substantially equal to that of a higher paid opposite sex employee or that they work in the same establishment as opposite sex comparator. In fact, you don't even really need a comparator. That's one of the interesting things as well. So sex discrimination is much easier case to go on assuming you did the EEOC filing. But again, the cons, and I've said it 15 times till Sunday, but I'm gonna say it again, you need to file with the EEOC within 300 days of accrual. And this is a confusion for some people, so let's make it clear. If your state doesn't have a comparable discrimination law, some stupid reason, and I think this is stupid, so if you're Congress, please listen to me. If your state doesn't have it, you have to file with EEOC within 180 days. So somehow by us having a state law, which is favorable to us to have a state law if we're a plaintiff, somehow we also get an extra 120 days. And that's a kind of interesting little advantage for states depending where you are, and you have to check the state law of where you are. Anyway, another problem with Title VII though, is you need 15 or more employees for Title VII to be applicable, otherwise you're outta luck. But you do need to check your state again because many states have zero, you've one employee, you're good. One employee, that's it. That's all we need in some states. So you gotta check where we are when you're bringing a Title VII case. Now to go back, now to go back, now to go back. I mentioned the 300 and 180, but I wanna give you a caveat. I learned this because I do education discrimination as well. In certain states, when you sue the government, you have an additional notice requirement called a notice of claim. In New York State, when you're suing the government, they wave a notice of claim for discrimination, except if you're dealing with education. If you're in the education law, you have to bring the notice of claim. So you have to check your state specific statutes. And this is just a generalized idea to see if there's anything that's gonna be an obstacle to you bringing the case. There's nothing worse than getting a malpractice claim because you blew a statute that was easily to check if you had LexisNexis or Westlaw, my favorite topic. So far in today's conversation, we talked about the women's soccer, that got me interested, and it got me interested, again, why did it get me interested? The damages were good, the 24 million, but honestly the Google number was even bigger, and we see those all the time. What got me interested is they lost first. We talked about women's soccer, then we went into, after the women's soccer, we gave you some baseline statistics, showed you about the sense on the dollar. And luckily, thankfully, over time, over time, younger, newer female workers occupation, they're getting more money on the dollar of the man, not equal, but getting better. I will tell you that there's a lot of talk that COVID set women back generations, because the people that went home to care for their kids who couldn't go to school were generally the women, although that is stereotypical, but statistics back it, to start off with, it's not the women's place to necessarily do that. There was plenty of men that could be, I wanted to be Mr. Mom, that would've been lovely. Anyway, I make great cookies, if you want cookies and milk, you'll be great times. I'm not saying that's what you do when you're Mr. Mom, when you're home, but I just really like cookies and milk, a different story for a different day. Back to where we are. We talked about statistics, and I will say to you that a lot of the women that went home are now the entrepreneurial boom going forward. So even though they lost their jobs and they have less bargaining power in the workforce to get raises, et cetera, when they left their job and went home, women are now the boom of small business and entrepreneurship, different article, different day. We talked about that. Then we went into the elements of a cognizable cause of action. A big fight I have with attorneys that work for me a lot is that attorneys think that they should say more, fight their arguments. Step one when you're bringing a case is can you survive a motion to dismiss for failure to state a cause of action? That's the first question. So you need to know the elements of a case, and when it comes to equal pay, it's nice to know that there's statutory affirmative defenses, you don't have to guess, we know what they are, and we could really flesh it out from the beginning. But my favorite topic is damages. Mother taught me, just because you can, doesn't mean you should. And if you're gonna spend $10 to get $5, don't go forward. Why do I like Equal Pay Act? Why do I like Title VII? Mostly, I like to represent corporate defendants, honestly, corporate defendants who pay hourly and you get the bill regularly, not 30, not 60. You don't have lots of fights over numbers, you don't have to do lots of handholding. It's like clockwork, but when it comes to plaintiff's work, I love Equal Pay and Title VII and I'll tell you why. We start on Equal Pay by looking at the bottom line first, the defendant has to play attorney's fees and costs, by there being a statutory fee shifting from the American rule, the American rule, meaning everyone pays their own fees, as you're going forward with the case, the defendant's racking up a bigger bill the entire time, meaning they can't drown you from having deeper pockets in extra discovery. In motion practice, because as they do that, they make their damages higher. Onto the Equal Pay Act, you can get damages for unpaid wages. Remember, unpaid wages are all the different categories. I read them before. I'll give you a little summary right now, like minimum wages, overtime, salary, bonuses, life insurance, vacation, holiday, pay cleaning, gasoline allowances, hotel accommodations, reimbursement for travel expenses and benefits. Remember, wages, while Equal Pay Act deals with rate, which is wages divided by how much you're working, wages, total wages, you can get all that money and then you can also get liquidated damages, and the same amount as unpaid wages, and again, those reasonable attorney's fees. And when you do a plaintiff's case, a lot of times you take them on contingency, where you get a third, that's standard, and then the client's confused, but it says you get reasonable attorney's fees. No, no, no. The reasonable attorney's fees are generally an additional measure of damages for the client, so it goes into the whole. I will tell you, I know plaintiff's counsel, it says they get the hire of the awarded attorney's fees or 1/3 of the net of everything. But that's for another day, Title VII, what's different? Unlike dealing with unpaid wages, which remember were considered to be minimum wage or overtime, as we talked about before when we read the law. And I acknowledge again, Equal Pay, you get liquidated damage, but on Title VII, you can get not just those pecuniary numbers, you can get emotional pain, suffering and convenience, mental language, that's an additional measure, something new, that's why you have to plead them both if you're in that 180 or 300 day EEOC thing, assuming you don't have a notice of claim requirement. You could get back pay, it's not capped, front pay, not capped. Why do I say not capped? Let's jump to the next slide and come back. If you notice, when it comes to Title VII, and I referenced this before, the compensatory damage is the peculiar and emotional pain, suffering and convenience, mental anguish, that stuff, it's capped based on the amount of employees that work with the employer, not just the current year or the proceeding year, there's a lot of litigation over that current or proceeding year language, which year are we talking about? But if you notice it goes all the way up from 50,000 to 300,000, depending on how big the employers. And that's just the emotional pain, because the back pay, the front pay, that's not capped, and you could get punitive or punishment damages which goes with the... Remember when we were dealing with the years before, didn't we deal with the years before? We were dealing with the years before of how many years you have to sue, is that what I said? I said, you have two years to sue. Remember, under the Equal Pay Act? And I said, you could have three years to sue if there was a willful violation, if there was a willful violation, I want you to also be thinking, not just you have three years, but on our Title VII claim, assuming we filed with EEOC in time, we got Right to sue letter, et cetera, cetera, that's a signal we're going for punitive damages moving forward, which are multiple, we're getting, and then the attorney's fees and costs are there as well. Here's the thing guys, in today's day and age, discrimination's one of the topics at our forefront. I see discrimination cases when it comes to disability, race, race wars we have, we have race wars, terrible, it's terrible stuff, sexual orientation. We can't forget the traditional of the women's movement. And women, what they've accomplished in going from not having credit cards to being the C-suite executives of today. But you can't just give someone the job, you have to compensate them for the job. And if you bring a Title VII claim and you get retaliated against, you have a second cause of action, just for the retaliation in the first place. You can't get bullied because you are raising a non-discriminatory right. If they do anything to you, that's a better claim than the first claim. It's like the second person that punches in the fight loses. It's time to speak up, it's time to be an ally. I'm a guy, I'm being an ally right now. It's time to show people which companies are taking advantage of people, irrespective if they negotiate their own collective bargaining agreement. It's time to leverage PR in the media. It's time to forget the glass ceiling, make the walls be glass and let everyone see in, and let's get people to be paid the same amount of money, the same amount of money so long is they have the same skill, effort, and responsibility. My name's Andrew Lieb, you can reach me at 646-216-8009. You can reach me at andrew&liebatlaw.com. I work, and I'm the Managing Partner of Lieb at Law. I invite you to check out my podcast that we do every week, The Lieb Cast, any podcast player, I'm here to help you. I hope you learn something. Thank you so much for listening.