Examples:

• • Justina Jong has worked for Apple since 2013 in roles including Sales Specialist, Team Lead, and Customer Service Training Instructor. She alleges pay gaps vs male peers.
  • Amina Salgado’s 12 years at Apple span Area Manager roles in divisions like AppleCare and Career Services. Despite Apple confirming she was paid less than men, she has not received full backpay.
  • The class could cover over 12,000 current and former Apple employees meeting the class definition. If certified, it would be one of the largest gender bias suits ever against a tech firm.
  • The 4-year class period aligns with applicable statutes of limitations for the causes of action alleged, while still capturing a broad timeframe of potential violations.
  • As class reps, Jong & Salgado have the responsibility to put the class’s interests ahead of their own and vigorously advocate for all female class members.

How Class Actions Proceed:

• • The court must first certify the proposed class, finding that it meets legal requirements like numerosity, commonality, typicality, and adequacy of representation.
  • If certified, notice is given to all class members, who can opt out to preserve individual claims. Otherwise, they are bound by the case’s outcome, win or lose.
  • Class representatives like Jong & Salgado then prosecute the case through their chosen class counsel, making decisions on behalf of the class’s interests as a whole.
  • Most class actions are settled before trial. But if the case does go to trial, the result – good or bad – applies to the entire class, making the stakes high on both sides.
  • Any settlement or judgment is divided among eligible class members (minus attorneys’ fees & costs) usually based on a formula accounting for their individual damages.

FAQs:

• • Why didn’t Jong & Salgado just sue individually? Class actions allow employees to band together against a big defendant, making the case more economical to litigate. They also allow for broad injunctive relief.
  • Will Apple try to get the class decertified? Likely yes. Defendants often argue the named plaintiffs or claims aren’t truly representative of the class. The judge will need to decide if the class stays certified.
  • Could Jong & Salgado be replaced as class reps? Potentially, if the court finds them inadequate. Additional plaintiffs may also be added. The case caption can change but the class soldiers on.
  • What if Jong or Salgado settles individually? The court would need to approve any settlement to ensure it’s in the best interests of the class as a whole. New class reps may then need to be appointed.
  • Are only women part of the class? Yes, this gender discrimination class action only covers women in the defined job categories and timeframe. Male Apple employees could bring their own case but aren’t part of this class.

Examples:

• • Jong & Salgado allege they were paid less than male colleagues for substantially similar work, like their Area Manager and Sales Specialist roles, violating the CA Equal Pay Act.
  • Apple’s alleged practice (pre-Fall 2017) of basing starting pay on prior salary and (post-2018) on candidates’ pay expectations is accused of perpetuating historic gender bias.
  • Failing to pay women equally allegedly constitutes an unfair business practice, giving Apple an unlawful advantage over competitors who do pay fairly.
  • Class members who left Apple were allegedly owed additional wages to compensate for the gender pay gap – pay they can recover under Labor Code Sec. 201-203.
  • Jong alleges she was sexually harassed by a senior employee who touched her inappropriately, and Apple failed to adequately respond, forcing her to continue working with him until her PTSD required leave.

Key Laws to Know:

• • CA Equal Pay Act: Requires equal pay for employees of different genders performing “substantially similar work” unless the gap is based on limited, legitimate factors. EPA claims have a 2-year statute of limitations, or 3 years if willful.
  • Fair Employment & Housing Act (FEHA): CA’s broad anti-discrimination law prohibiting bias based on protected characteristics including gender. Bans disparate impact practices with discriminatory effects.
  • Unfair Competition Law (UCL): Allows plaintiffs to bring claims for “unfair” or “unlawful” business practices, generally conduct that violates other laws. Provides for injunctive relief and restitution.
  • Labor Code Sec. 201-203: Requires prompt payment of all wages due upon discharge or voluntary separation. Allows penalties of up to 30 days’ wages for failure to comply.
  • “PAGA”: Lets aggrieved employees file suit on behalf of themselves, other employees, and the state to recover civil penalties for Labor Code violations. 25% of penalties go to employees.

FAQs:

• • How will Apple likely defend against these claims? Apple may argue the women weren’t performing “substantially similar” work to higher paid men, or that factors other than gender explain the gaps. They may also challenge the statistical methods used.
  • Why include the hostile work environment/harassment claims? While more individual than the class claims, Jong’s allegations help paint a picture of Apple’s broader alleged disregard for women’s rights.
  • If the plaintiffs lose on the EPA claim, do they lose them all? Not necessarily. The different causes of action have separate elements plaintiffs must prove. Plaintiffs could lose the EPA claim but still prevail on others.
  • What kind of injunctive relief could the court order? If Plaintiffs prove their claims, the court could order Apple to change its pay policies, conduct audits, report to the court, and take other steps to ensure compliance.
  • Why are there so many different laws involved? Pay discrimination cases often involve an interplay of employment, civil rights, and unfair competition laws. Using multiple theories helps maximize potential remedies.

Examples:

• • Jong alleges she performed substantially similar work to male colleagues in Sales Specialist and Team Lead roles, but was paid less, meeting the prima facie test.
  • Apple may argue that differing experience between comparators explains pay gaps, not gender. But minor distinctions likely won’t override substantially similar work.
  • Apple will have the burden to prove differences in things like seniority or merit justify any pay disparities – plaintiffs will argue those are pretext for bias.
  • The EPA allows liquidated damages in an amount equal to unpaid wages for “willful” violations, which plaintiffs allege Apple acted willfully here, significantly increasing exposure.
  • Salgado claims even after Apple’s internal analyses confirmed she was underpaid vs male peers, she wasn’t given full back pay – an example of a willful, ongoing EPA violation.

Pay History & Expectations – Unique Legal Issues:

• • Plaintiffs allege Apple’s past use of candidates’ salary histories and later reliance on their pay expectations bake in gender bias and widen EPA gaps over time.
  • Many jurisdictions now ban pay history inquiries due to discriminatory impact – California’s ban took effect in 2018. Using it before then may show Apple’s “willfulness.”
  • Using pay expectations instead invites similar bias, as studies show women expect less due to historic disparities. Framing this as an “other than sex” defense will be key for Apple.
  • How courts view these nuanced practices will significantly impact tech companies and others who routinely ask pay expectations and may have used history in the past.
  • If a court finds these practices violate the EPA – and awards hefty damages – it could accelerate changes to common hiring practices in CA and beyond.

FAQs:

• • Are men ever paid less than women under EPA? Yes, the law is gender neutral. But currently pending EPA collective actions almost exclusively allege women are underpaid.
  • What exactly is “willful”? There’s debate in caselaw, but plaintiffs will argue factors like longstanding disparities, Apple’s size/sophistication, and its past pay history use show willfulness.
  • Is the “bona fide factor other than sex” exception a loophole? Some argue it is, but courts limit it to objective business reasons. Plaintiffs will argue Apple’s “talent” assessments are too vague and subjective.
  • What if a female employee negotiates a higher salary? Doesn’t necessarily defeat EPA claim. Question is if she’s paid less than men doing substantially similar work, regardless of negotiations.
  • How do plaintiffs calculate damages? Generally by estimating pay gaps between each class member and male comparators over the relevant time period. Expect competing expert analyses on both sides.

Examples:

• • Plaintiffs allege Apple’s practice of considering prior pay history caused women to start behind and never catch up. Statistical analysis will be key to proving disparate impact.
  • Basing pay on “expectations” may sound less problematic than on prior pay, but if Apple’s data shows this practice also disadvantages women, it too could violate FEHA.
  • Plaintiffs contend Apple’s opaque “talent” designations and evaluations foster bias by rewarding subjective traits. The more amorphous the system, the harder to justify as a business necessity.
  • If Apple can show its practices are valid and job-related, plaintiffs may present alternatives like more transparent criteria, frequent audits, or ending use of salary expectations.
  • Expect a battle of statistical experts, with each side presenting competing analyses on whether Apple’s practices are biased against women and if less discriminatory options exist.

Importance of Disparate Impact Theory:

• • Disparate impact lets plaintiffs challenge overall employment practices with discriminatory effects, without having to prove discriminatory intent.
  • This is key for attacking longstanding, ingrained practices that seem neutral but operate in biased ways, especially given unconscious bias.
  • Many progressive states like CA have disparate impact laws, but no federal statute explicitly prohibits it, making state claims critical.
  • Disparate impact theory recognizes that inequality flows not just from overt bias but from structures and systems – dismantling those takes more than banning intentional discrimination.
  • A major disparate impact win could force widespread changes to common Silicon Valley pay practices and inspire more challenges to subjective, “black box” compensation schemes.

FAQs:

• • What’s the difference between disparate impact & disparate treatment? Disparate treatment requires proof of discriminatory intent – disparate impact just needs to show discriminatory effects, regardless of intent.
  • How do courts decide if a less discriminatory alternative exists? Plaintiffs must be specific – “eliminate using prior pay” is better than a general call for “fairer practices.” Courts balance efficacy, costs & burdens.
  • What sample size is needed for statistical significance? The larger the disparity, the smaller the sample can be. Gaps of 3+ standard deviations in large samples are generally considered statistically significant.
  • Does the employer’s workforce have to exactly mirror the relevant labor pool? No – the law doesn’t require strict proportionality. But stark imbalances can give rise to an inference of discrimination.
  • Can an employer still be liable even if it didn’t intend to discriminate? Yes – that’s the key difference with disparate impact. Showing discriminatory effects from a practice can be illegal regardless of intent.

Examples:

• • With a proposed class period going back 4 years, if average pay gaps are $20,000/year, Apple could owe $80,000 in back pay alone to each class member.
  • Allegations that Apple knew its practices were causing gender pay gaps but failed to act are the kind of “willful” conduct that may trigger double damages under the EPA.
  • While the class claims don’t allow for compensatory damages, seven-figure awards for individual plaintiffs like Jong aren’t unheard of in harassment/retaliation cases.
  • Punitive damages are rare since they require showing malice or reckless disregard. But Apple’s size and resources mean even a small multiplier could yield huge liabilities.
  • The broadest impact could come from sweeping injunctive relief, like ending pay expectations queries, more transparency in evaluations, and court monitoring.

High Stakes for Both Sides:

• • A loss for the plaintiffs could reinforce tech’s “bro culture” reputation and make women even more reluctant to speak up about pay disparities and harassment.
  • But a plaintiffs’ victory, especially a large one, could embolden other women to come forward, leading to a flood of “me too” suits against other Silicon Valley giants.
  • For Apple, beyond the financial stakes, a loss could tarnish its brand and make it harder to recruit top female talent in an already competitive landscape.
  • The discovery process alone – when each side can probe policies, practices and data – could mean airing embarrassing details Apple would rather keep private.
  • Losing could also mean ongoing court supervision, more bureaucracy, less flexibility in pay and promotions, and ceding control of employment practices.

FAQs:

• • How much are the named plaintiffs likely to get? Amounts vary widely. Some lead plaintiffs get 6-7 figures in addition to class funds; others just get a bit more than unnamed class members.
  • Will all class members get the same amount? Not necessarily. Different tenures, pay rates and circumstances mean a formula pegging awards to estimated losses for each member.
  • How long will the case take to resolve? Class actions commonly take 2-5 years from filing to trial/settlement. Appeals can extend that. But most cases settle before trial.
  • What percentage will the lawyers get? Typically 25-35% of the total settlement fund in class actions, plus costs. May be less if they take the case to trial and win.
  • Will an injunction force gender-based quotas? No. Quotas are illegal. But an injunction could require Apple to reform practices with discriminatory impact and report on gender equity progress.

Questions: Apple Discrimination Lawsuit Basics

• • 1. How many named plaintiffs are there in the lawsuit against Apple?
    • A) 1
    • B) 2
    • C) 5
    • D) 10
  • 2. What Apple divisions are covered by the proposed class definition?
    • A) Software Engineering only
    • B) Engineering, Marketing & HR
    • C) Engineering, Marketing & AppleCare
    • D) All Apple divisions
  • 3. How long is the proposed class period?
    • A) 1 year before filing
    • B) 2 years before filing
    • C) 3 years before filing
    • D) 4 years before filing
  • 4. Approximately how many current and former Apple employees could be part of the class?
    • A) 1,200
    • B) 5,000
    • C) 12,000
    • D) 50,000
  • 5. Where was the lawsuit filed?
    • A) Los Angeles Superior Court
    • B) San Francisco Superior Court
    • C) U.S. District Court for the Northern District of California
    • D) U.S. Supreme Court

Answers: Apple Discrimination Lawsuit Basics

• • 1. B) The case was filed by 2 named plaintiffs – Justina Jong and Amina Salgado.
  • 2. C) The proposed class covers female Apple employees in the Engineering, Marketing & AppleCare divisions.
  • 3. D) The class period spans 4 years prior to the complaint filing through the date of trial.
  • 4. C) The plaintiffs estimate over 12,000 current and former employees could be part of the class.
  • 5. B) The case was filed in San Francisco County Superior Court in California.

Questions: Legal Issues & Allegations

• • 1. What is the key federal law at issue in the gender pay claims against Apple?
    • A) Title VII of the Civil Rights Act
    • B) Family & Medical Leave Act (FMLA)
    • C) Equal Pay Act (EPA)
    • D) Americans with Disabilities Act (ADA)
  • 2. What California state law prohibiting gender discrimination is central to the case?
    • A) California Equal Pay Act
    • B) Fair Employment & Housing Act (FEHA)
    • C) Unfair Competition Law (UCL)
    • D) California Family Rights Act (CFRA)
  • 3. The complaint alleges Apple’s reliance on what factors perpetuated gender pay gaps?
    • A) Prior salary history
    • B) Pay expectations
    • C) Subjective performance evals
    • D) All of the above
  • 4. What legal doctrine focuses on discriminatory impact of policies, not just intent?
    • A) Disparate impact
    • B) Disparate treatment
    • C) Constructive discharge
    • D) Affirmative action
  • 5. What individual claim does plaintiff Justina Jong allege in addition to the class claims?
    • A) Wrongful termination
    • B) Hostile work environment / Harassment
    • C) Denial of promotion
    • D) Failure to provide meal & rest breaks

Answers: Legal Issues & Allegations

• • 1. C) The federal Equal Pay Act, which requires equal pay for equal work regardless of gender, is a key basis for the pay discrimination claims.
  • 2. B) The California Fair Employment & Housing Act (FEHA) is the state law prohibiting gender discrimination that is central to the plaintiffs’ case.
  • 3. D) The complaint alleges Apple’s use of prior salary history, pay expectations, and subjective evals all contributed to gender pay disparities.
  • 4. A) Disparate impact theory allows challenges to policies that have discriminatory effects on protected groups, even without proving discriminatory intent.
  • 5. B) In addition to the class claims, plaintiff Justina Jong alleges she was subjected to sexual harassment and a hostile work environment.

Questions: Damages & Other Remedies

• • 1. What type of damages are available for “willful” violations of the federal EPA?
    • A) Liquidated damages
    • B) Punitive damages
    • C) Treble damages
    • D) Nominal damages
  • 2. What is the most common type of damages awarded in successful EPA cases?
    • A) Emotional distress damages
    • B) Punitive damages
    • C) Back pay
    • D) Front pay
  • 3. Can compensatory damages be awarded to the class under the EPA or FEHA?
    • A) Yes, on both EPA & FEHA claims
    • B) Yes, but only on the FEHA claims
    • C) Yes, but only on the EPA claims
    • D) No, not available for either
  • 4. What’s an example of injunctive relief the plaintiffs are seeking?
    • A) Court-ordered pay increases
    • B) Changes to discriminatory pay policies
    • C) Reinstatement of terminated employees
    • D) Mandatory sensitivity training
  • 5. If successful, what percentage of the total recovery will likely go to attorneys’ fees?
    • A) 5-10%
    • B) 15-20%
    • C) 25-35%
    • D) 50% or more

Answers: Damages & Other Remedies

• • 1. A) Liquidated damages, in an amount equal to back pay owed, can be awarded for “willful” EPA violations.
  • 2. C) Back pay, to compensate plaintiffs for pay they should have received absent discrimination, is the most common type of damages in EPA cases.
  • 3. D) Compensatory damages for emotional distress, etc. are not available for class EPA or FEHA claims, only certain individual claims.
  • 4. B) The plaintiffs seek injunctive relief requiring Apple to change pay policies and practices found to be discriminatory.
  • 5. C) Attorneys’ fees in successful class actions are typically 25-35% of the total settlement fund.

Disclaimer

The information provided in this article discussing the Jong v. Apple gender discrimination class action is for general educational purposes only and not intended as legal advice. Laws and case facts are summarized and simplified – consult court filings and experienced counsel for a full understanding of the allegations and defenses.

Nothing in this article should be construed as establishing an attorney-client relationship. If you feel you’ve been subjected to unlawful workplace bias, consult an employment lawyer promptly to understand your rights, as strict deadlines may apply. Most reputable firms provide free, confidential consultations.