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.
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.