The Federal Courts of Appeal
In a previously published article, I answered negatively the question of whether disparate impact theory of liability is available as a matter of law for a plaintiff or an enforcement agency to make a case of sex-based discrimination in compensation under the Equal Pay Act of 1963 (EPA) and/or under Title VII of the Civil Rights Act of 1964. I reached this conclusion after rev...
When experts discuss discrimination in compensation, they always warn us that compensation is complex. True…discrimination in compensation is complicated. But the challenges from complexity are only part of the endemic problems of the current state of the theories of discrimination in compensation. The reality is that existing approaches, practices and theories of discrimination in compensation have hit an impasse for a m...
Discrimination cases are essentially “games” of making relevant, suitable, or valid comparisons between suitable, valid, or appropriate comparator(s). While anti-discrimination laws do not define discrimination in a comparative sense, comparators have had clear appeal as an evidentiary or heuristic aid for gauging whether discrimination has occurred.Comparators and comparisons make visible the occurrence of comparatively ad...
Many things have been written and debated in 2014 about the OFCCP’s (Office of Federal Contract Compliance Programs) renewed interest in the “theory of steering” that the agency re-introduced in Directive 307. While the OFCCP critics have accepted that the theory of steering is adequate for selection claims, they continue to consider its application to compensation claims as inappropriate at best. Nevertheless, the OFCCP...