By Jack Tuckner, Esq.
What is the Federal Equal Pay Act?
Gender pay discrimination (sometimes also called “gender pay disparity”) occurs when female employees are paid less than men when performing the same or substantially similar jobs. Overall, it is the job content and not the job titles that determine whether jobs are considered substantially equal. Under the Equal Pay Act of 1963, such pay discrimination is illegal.
What Protections are Afforded Under the federal Equal Pay Act?
The Equal Pay Act of 1963 requires that men and women performing jobs that require substantially equal skill, effort, responsibility and performed under similar working conditions be compensated equally. Equal pay for equal work. Sounds reasonable, right?
Yet women still earn 82% of what men earn, according to a 2017 oft-cited Pew Research Center analysis of median hourly earnings of both full and part-time US employees. Based on this estimate, women would have needed to work an extra 47 days in 2017 to earn what men earned that year. In my experience representing women in employment discrimination cases for 20+ years, this grim reality is still true today. Women are discriminated against when it comes to earning what they’re worth, and are still paid unequally in relation to men for equal work.
What is the Purpose of the Equal Pay Act?
Congress intended the federal Equal Pay Act to serve a broad remedial purpose. The US Supreme Court has recognized that the Equal Pay Act was designed to remedy what was perceived to be a serious and widespread problem of employment discrimination in private industry – the fact that the wage structure of “many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.” Yes, this sexism still exists.
What Criteria are Used to Determine if Your Company is Violating the Equal Pay Act?
Under the Equal Pay Act (EPA), a female complainant “does not have to prove that two jobs are identical, but rather must show that the skill, effort and responsibility required in the performance of the jobs are substantially equal. Work is “substantially equal” for purposes of the EPA if it requires “equal skill, effort, and responsibility.” This determination is made by the judge or jury based on the actual content of the job in question, not in relation to just the job descriptions or job titles.
What Factors are Considered When Determining “Substantially Equal” for EPA Claims?
The EPA looks to the following factors when determining whether or not unequal pay (or gender pay disparity) has occurred:
- Skill: skill is measured by factors such as the experience, ability, education, and training required to perform the job. The critical issue is what skills are required for the job, not what skills the individual employees may have.
- Effort: effort is the amount of physical and mental exertion needed to perform the job.
- Responsibility: responsibility is the degree of accountability required in performing the job.
- Working Conditions: working conditions encompass two factors: (1) physical surroundings such as the workplace temperature, fumes, ventilation and (2) hazards.
- Establishment: The prohibition against gender pay disparity under the EPA applies only to jobs within one establishment — which is defined as a distinct physical place of business — rather than a business or enterprise consisting of several places of business. The bottom line comes to down to are you being paid less than men who are basically doing your job?
What are the Four Defenses to Pay Disparity under the Equal Pay Act?
Differences in pay are permitted between men and women when they’re based on seniority, merit, quantity or quality of production, or a differential pay based on any other factor other than sex. These four excuses to pay women less than men are known as ‘affirmative defenses’ to an unequal pay claim in Court, and it is the employer’s responsibility to prove that they apply.
These defenses are pretty self-explanatory. If a man is being paid $5,000 per year more by your company for performing work substantially similar to yours, it can easily be justified by the seniority affirmative defense if he’s worked there 5 years longer than you’ve worked there.
Merit as an affirmative defense means that your employer can argues that your pay has nothing to do with your gender, and instead is due to the fact that you’re a lousy employee (and the company has oodles of negative documentation on file and your recent performance improvement plan to prove it). Your male counterpart, Bob, who makes more than you, has an unblemished record. The company may then have a valid reason for paying you less than Bob.
Quantity or quality of production: You only made 35 widgets this month on the assembly line—Bob made 50 widgets and they were better looking widgets than yours, too. So, of course, we pay him more. Case closed.
Differential pay based on any other factor other than sex: This is the catch-all slickest affirmative defense employers use to their advantage, when they contrive such things as “market forces” that sounds sex-neutral but in the end amounts to direct or indirect sex discrimination.
For an excellent in-depth piece on the EPA and this troubling employer defense that will be eradicated once Congress finally passes the federal Paycheck Fairness Act, see this discussion.
The Bottom Line
Gender pay discrimination claims are hard enough to bring, so if any of the four defenses hold water, it will be difficult to win a gender pay disparity, or unequal pay, lawsuit. But that doesn’t mean you won’t have negotiating leverage over your employer if you’re currently still employed.
Maybe there is a legitimate factor to pay a male counterpart more, such as he is producing more widgets (see “notes” below) per month than you. For example, if Bob’s widget output is 2% more per month than yours, this would likely not justify the company in paying Bob 25% more than you. As a result, a pay discrepancy could include both justifiable and non-justifiable (illegal) components.
What Should You Do?
In order to make a case for sex discrimination based on pay (unequal pay claims are sex discrimination claims, by definition), the more facts that you have to document your claim, the better. Let’s say that you’re aware of a male colleague who’s performing the same or a “substantially similar” job as you, has the same or less seniority than you, but he can’t hold a candle to you in terms of your abilities, yet you know that your company is paying him more and you suspect that it’s only because he’s a man that you’re getting short-shrifted in your salary.
Assuming that you have this information, the next step would be to contact your company’s HR department in writing, explaining that you believe that you are being discriminated against because you’re a woman, and requesting an immediate investigation into your protected complaint to give your company the opportunity to equalize your pay to your male counterpart.
According to the National Labor Relations Act, most US employees are permitted to discuss salaries amongst themselves or with the employer, as such conversations are considered protected concerted activity, and in New York, for example, Section 194 of the Labor Law prohibits employers from restricting employees’ ability to inquire about, discuss, or disclose wages with other employees, so you have every right to know if you’re being paid too little for illegal reasons, such as because of your sex, a.k.a, illegal gender pay disparity.
Then, follow-up to see whether the company has conducted an investigation, and if so, what have they found and what corrective action are they taking to harmonize your salary with the comparator men who are paid more than you for performing substantially equal work.
You should ask for the company’s determination in writing, and if they fail to do so, then document your understanding of the company’s response in writing so that there will be a record of the company’s conduct relative to your protected complaint. Please also note that if you have been the victim of illegal pay discrimination, you may be entitled to back pay and other compensation, so please feel free to call us to learn about your rights if you wish to know more.
How We Can Help.
If the company takes the position that there is no gender pay discrimination and it does not adequately address your concerns, please consider contacting our firm (you should also feel free to contact our firm earlier in the process if you wish). The consultation is confidential and free of charge, and once we learn about your situation, we can advise you regarding how we can help.
(Notes: I’m using the term “widget” as a placeholder for whatever work, deliverables or service your company provides, and “Bob” as the random male “comparator” who’s earning more than a woman performing a comparable job.)