A really good defense would be to build a totally race and gender anonymized system of hiring. How could we have discriminated against your race and gender when your name was obfuscated, your voice was modulated, and we took very strict precautions to ensure nobody involved in interviewing or setting compensation even knew your gender? This was not feasible before remote interviewing became normalized during COVID, but I'm interested in seeing if it gains traction.
The evidence the plaintiff brings can be as simple as "I polled ten people with my job title in the company." If the company hasn't tracked this data at all and can't produce it in its defense, then in a civil case the plaintiff would have the preponderance of evidence on their side and the resulting resolution to make them whole could be all the back-pay they are owed between what they made and what their peers made.
So even outside of the need to file EEOC-1, companies are heavily incentivized to track this data (as any competent employment lawyer would indicate); you don't want to be scrambling to satisfy evidentiary burden in a lawsuit.
If someone complains about an orchestra that doesn't have the racial or gender makeup they want, but the orchestra points out they have blind auditions and robust systems to ensure that the identities of musicians aren't leaked to evaluators then it's tough to provide a preponderance of evidence of discrimination.
We'd have to wait to see what happens if someone tries it. Point is: in the average case, it's setting oneself up to spend time in court, and most companies optimize for staying out of court, not becoming a test subject on the path-dependency of novel caselaw.
The requirements to prove a discrimination suit are far more direct: you need to prove that the company directly used protected class to make hiring or compensation decisions. And if the people making these decisions were never even informed of the candidate's protected class status it's exceptionally difficult to make the case that this was affecting this decision making.
> for example, basing a candidate's pay on 110% of their pay at their previous employer can result in implicit wage discrimination because men tend to enter the workforce at a higher pay and catch higher pay bumps in promotions
Actually, this is a perfect example of something that isn't going to get the company into legal trouble. They didn't make this decision on the basis of race, gender or another protected class. They made this decision based on something entirely objective: the candidate's previous pay. If that employee's previous employer was engaging in racial discrimination, then that's the company that vulnerable to a lawsuit.
I'm interested in this notion that you can sue your current employer, because a co-worker's past employer potentially engaged in gender discrimination that bumped their salary, which in turn was used in negotiations with the current employer. Do you have an example of any such lawsuit succeeding?
Rizzo v. Yovino, 9th Circuit ruling, indicates that basing present pay on past pay may violate the Equal Pay Act of 1963 (https://www.forbes.com/sites/ericbachman/2020/03/13/past-sal...).
... but more importantly, this case has entangled the Fresno County public school system for over a decade. That's expensive relative to the alternative of... Not doing that.
> "Your honor, my client was paid less than half what her male peers were paid."
> "Does the defense have a counter-argument?"
No. It should be more along the lines of "Prove it". To come forth with such a claim carries with it the implication that one actually has /evidence/ for it, however (in)substantial. The response is NOT to automatically deflect to the defense in order to prove innocence.
> "Well, uh, your honor, we, uh, don't actually know the gender of our employees, so we don't, uh, have that data at our fingertips. We probably don't, we think, but we don't have the numbers to know one way or the other, and..."
Nothing wrong with that. Evidence can be procured on demand by court order. And even if it were discovered that this one individual female client were paid less than her male counterparts, you'd have to prove that it was because she was female. That means gathering evidence on what her female peers were paid, as well. This particular client could have been an anomaly (e.g. less hours worked, less responsibility, not exactly a peer to her counterparts, the lower pay was only temporary and/or due to some previous agreement, etc.) leading the courts to find nothing systemically wrong with this employer. Don't be so quick to judge, without evidence or context.
And the burden of proof is on the accuser. The court doesn't just say "we don't have the data, so we must assume it's what the accuser says".
> If you insist that the complainant is the one who has to investigate the salaries and work performance of all her coworkers, you’re immediately setting her up for failure.
Yes! And that's exactly how the court works: the burden of proof is on the accuser.
> Requiring the company itself to record this information can provide evidence that they’re abusing employees
And why on earth would the company want to do this, when it could potentially harm them?
"Your honor, my client was paid less than half what her male peers were paid."
"Does the defense have a counter-argument?"
"Well, uh, your honor, we, uh, don't actually know the gender of our employees, so we don't, uh, have that data at our fingertips. We probably don't, we think, but we don't have the numbers to know one way or the other, and..."