She can certainly file an EEOC claim, however, all the company has to do is demonstrate that there is a non-discriminatory reason for the difference in pay. As she opened the office and was the person's supervisor, those factors will weigh in her favor.
His client list and salary demands pre-employment is what they will argue...i.e. they were compelled to pay that much money to hire the individual they wanted.
It's a tough battle, but a low cost one. It is simple to initiate an EEOC claim without much cost.
Thanks. it sounds like the complaint board moves it forward if there is justification. Thanks for the input IB.
I would peg the likelihood of the EEOC actually prosecuting her claim at about 0.1% (1 in 1000) based on the facts as you've recited them. Of course, even if the EEOC investigates and issues a no cause finding, she can still sue. In fact, if she's advancing an Equal Pay Act claim (as opposed to a Title VII gender discrimination claim), she doesn't need to file first with the EEOC. She can proceed directly to court with her suit.As for damages, how long did she work with the new hire before she quit?
I agree that it is unlikely the EEOC actually advances her claim. They almost never do and not on the facts we've seen alone. That said, by filing a petition with the EEOC rather than going the 'direct-to-attorney' route, the employer will be asked to submit to mediation (they'll likely decline, but that would be a boon) and at least file a statement of position with the EEOC. The EEOC can and may investigate further if they feel there is information left out of the company's statement of position. You can and still do have the right to sue after the EEOC makes its determination (which in most cases is to make no determination dispositively either way). The benefit to going the EEOC route first is that you can file the petition on your own, with no representation for little to no cost. The employer may submit to mediation and even if it doesn't, there is some level of discovery that is completed by the EEOC which will be available to your attorney should you move onto the next stage.
You are correct in all respects. But the discovery from the employer is really not all that valuable in terms of litigating a case. It will be little more than a completely self-serving letter and some back-up documentation that you will automatically get at the outset of the case through required Rule 26 disclosures.
What going to the EEOC will do, however, is waste time. She has to file her EPA claim within two years, and filing with the EEOC doesn't toll the limitations period. She's been gone from her job 8 months. If the EEOC takes another 12-15 months to investigate (not unusual at all), she's now bled off all or most of her limitations period. But even if she is able to get her EPA lawsuit filed under the two year limitations period, it's possible that she may have eliminated the vast majority of her recoverable damages waiting for the EEOC. While the Lily Ledbetter Act provides that each discriminatory paycheck restarts the statute of limitations (as opposed to the underlying decision to hire the higher-paid guy, which would likely fall outside the statute), actual damages under the EPA is limited to the recovery of back pay for a period of up to two years prior to the filing of the EPA complaint (extended to three years upon a showing of willfulness, which is a relatively high burden). If she's filing her lawsuit in the 23rd month following her resignation, she may have eliminated all but a month of back pay damages. Because the EPA does not require the filing of an EEOC charge as an administrative prerequisite, I don't believe that the two-years of back pay damages in the lawsuit would relate back to the initial filing of the EEOC charge (I haven't handled that issue in any of my cases so I admittedly haven't researched it. Take this as a word of caution rather than gospel). Also keep in mind that compensatory and punitive damages are not available in an EPA suit, so preserving back pay damages is the paramount factor here (she can recover an additional amount equal to the back pay awarded as liquidated damages, but again this is entirely based on the amount of back pay that can be recovered).
Edit: Of course, for the reasons explained in the following post, it may not make financial sense to file a lawsuit, and she may have difficulty finding a lawyer to work on contingency given the limited damages.
As for a potential Title VII gender discrimination claim, she could file an EEOC charge on those grounds (and would be required to do so before filing a lawsuit) and that would toll the limitations period for the Title VII claim. The problem here is that she may not have standing to sue. Only employers with 15 or more employees in each of 20 or more calendar weeks in the current or preceding calendar year are covered employers under Title VII. JFT's statement that the company has "maybe 15 total" employees leaves that issue open to question.
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