FortneyScott Joins Forces to Support Supreme Court Review of Rizo Prior Pay Decision
October 19, 2018
In the wake of the Ninth Circuit’s decision in Rizo v. Yovino , FortneyScott, on behalf of the Society for Human Resource Management (“SHRM”), partnered with the U.S. Chamber of Commerce to file a brief for amici curiae in support of the employer’s petition for writ of certiorari on October 4. At issue before the Supreme Court is whether prior salary is a “factor other than sex” as defined by the Equal Pay Act (“EPA”).
The Ninth Circuit decision unanimously held that “any other factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance. As such, the Ninth Circuit held that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the provisions of the EPA. However, the Court left open the possibility that prior salary could potentially play a role in individualized salary negotiations.
In light of the Ninth Circuit decision, Yovino filed a petition for writ of certiorari on August 30. As a result, a number of key employer-side groups, including SHRM, expressed support for U.S. Supreme Court review in order to clarify the significant and important question of whether employers can rely on prior salary history in setting workers’ wages. The support for Supreme Court review is also strengthened by the fact that there is a deep circuit split on the ability and legality of employer’s reliance on prior salary and a Supreme Court decision would result in a uniform policy across the nation for all employers.
We expect the U.S. Supreme Court to issue a decision on the petition for writ of certiorari by the end of this year. In the meantime, if you have any questions or assistance on how to navigate the complexities surrounding pay practices, or if you are interested in learning more about the status of the case generally, contact your FortneyScott counsel.
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens. The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies. As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers. Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President. Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion. As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest. This is the first complaint filed challenging DOGE’s access to sensitive government information systems.
On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO. With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.” As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause. We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.
Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens. The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies. As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers. Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President. Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion. As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest. This is the first complaint filed challenging DOGE’s access to sensitive government information systems.
On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO. With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.” As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause. We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.
Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:
Yesterday, Fortney & Scott launched the first in a series of webinars to provide employers with valuable information about President Trump’s actions that significantly impact the workplace.
FortneyScott presents one of a series of webinars regarding Trump's Executives Orders, specifically, the revocation of EO 11246.
In an anticipated move, the Department of Labor halted enforcement of anti-discrimination laws and affirmative action programs (AAPs) for federal contractors, following an Order from the Acting Secretary of Labor, Vincent Micone.
Former President Donald Trump has revoked a nearly 60-year-old executive order, originally signed by President Lyndon Johnson, that prohibited government contractors.
