Seyfarth Synopsis: A recent decision from the U.S. District Court in Kansas—Spears v. Thermo Fisher Scientific—ruled that a pay equity analysis conducted primarily for business purposes was not protected by attorney-client privilege or the work product doctrine. The court further held that, even if privilege had applied, it was waived when the company disclosed summary findings in its publicly available Corporate Social Responsibility Report. This case underscores a critical takeaway for employers: how a pay equity study is structured, its stated purpose, and the way results are communicated can determine whether it is shielded from discovery in future litigation.
Summary
Plaintiff, a 56-year old African American woman with extensive experience in microbiology and pharmaceuticals, brought claims for race, sex, and age discrimination, as well as retaliation, against her former employer. She alleged that despite her qualifications and tenure, she was repeatedly passed over for promotions and placed in a lower pay band without appropriate compensation.
During discovery, Plaintiff sought production of a Pay Equity Study (“the Study”) the Company engaged a third party consulting firm to conduct. The Company asserted that the Study was protected by attorney-client privilege, the work product doctrine, and self-critical analysis privilege. The Magistrate Judge rejected these assertions and ordered the Company to produce the Study, finding that it was not privileged because its...
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