As a New York sexual harassment law firm, one of the questions that we are most frequently asked is “what…
Know Your Rights: Want Equal Pay?
Be a Man!
You’re a bartender working in a restaurant and you discover that one of the male bartenders who was hired after you is earning more money per hour than you are. When you complain to the restaurant manager, he tells you what other people get paid is none of your business; get back to work. What should you do?
1. Forget about it. You’re lucky you have a job. 2. Apologize to the manager for being insubordinate and tell him you’re grateful he lets you work there. 3. Apologize to the male bartender before he finds out you complained about him and he gets really mad at you and makes you cut all the Bloody Mary limes for Sunday brunch. 4. Wait till everyone goes home and then blow the restaurant into tomorrow with C-4 explosives. 5. Assert your right to Equal Pay.
Answer: Even though (d) is an attractive choice, I’d have to go with (e) as the most empowering solution.
Whether you’re a female doctor, lawyer, corporate executive, office worker, college professor, actor, athlete, stockbroker or mail clerk, you’d do significantly better if your face was stubbly in the morning and you always left the toilet seat in an upright position. Say what? Okay, I’ll repeat it; if you have the same job, same experience and same education as a similarly situated male employee, chances are you’d be socking away 26.4% more money if you were a little bigger and a lot hairier.
If you earn around $40,000 per year, you’d be pulling down $10,560 more cash each year if you were a man. That’s a substantial amount of money that you can’t spend on things that you want and people that you love. That’s thousands of dollars each year which isn’t available to take care of yourself, your family, travel, buy clothes, invest, pay bills or just have fun. This disparity exists simply because you’re a woman.
Is this fair? No. But hey, babe, we’re Men. Men have to support their families, don’t they? Men don’t have to take twelve weeks off from work, that’s three months away from the action and the clients and the testosterone-laced deals, every time we feel like having another kid. None of this Family and Medical Leave Act nonsense for us. We work. Why? Because we’re Men. We’re rewarded for our strength, assertiveness and, well, just because we’re Manly. Wake up and smell the Y chromosomes, honey. Men are men and women are women, somebody has to win, rule, succeed and dominate. Just be grateful you’re an American woman, sweetheart. Try moving to practically any other country on this planet and see how the boys react to all this equality drivel. Listen, it wasn’t so long ago that all you broads were confined to the kitchen and the bedroom, all right? You’ve come a long way, baby. So, chill.
Chill? How about steam? Well, don’t get mad, get even. Or better yet, get Equal. The Equal Pay Act, that is. It’s true that centuries of gender stereotypes, religious fundamentalism and social conventions die hard and slow, resulting in the persistence of unequal pay for women performing the same work as men. It also happens to be illegal under United States law for women to earn less than men for substantially equal work.
Under the federal Equal Pay Act of 1963, as well as the civil rights law known as Title VII and individual state’s equal pay laws, discrimination in compensation to employees on the basis of sex is prohibited. It doesn’t matter whether your employer is paying you less wages or providing you with fewer benefits intentionally or by accident, if you are earning less overall compensation than a male counterpart performing substantially the same job at the same place of business, you can file a charge with the Equal Employment Opportunity Commission (see box below). Or you can commence a lawsuit in federal court seeking lost wages (what you would have earned over the past two years; three years if a willful violation is proven), and the Court may double that amount, known as liquidated damages, unless the employer can demonstrate that it acted in good faith and with reasonable grounds to believe that it was in compliance with the Equal Pay Act. When you prevail in Court, you may also be awarded attorneys’ fees for your intrepid trial lawyer in addition to the costs of the litigation. You must file your claim within two years after the cause of action accrues, or three years in the event of a willful violation. In English, this means that you should get the ball rolling as soon as you become aware that your pay is less than men performing the same job as you.
Except for a spontaneous flash fire that levels two-thirds of corporate headquarters, a jury trial in federal court is the last event that your employer wants to see happen. Attorneys’ fees (theirs and yours), double damages, costs (theirs and yours), time away from work for key executives preparing for the defense, potential adverse publicity for the company; in short, if your claim is provable, you will most likely favorably settle your case long before the first gavel ever strikes the bench.
So, What is Equal Work?
The Equal Pay Act requires that you prove that your position and the male’s position (the two jobs being compared), require substantially equal skill, effort and responsibility and are performed under similar working conditions. The compared jobs do not have to be identical in every respect, just substantially equal. It is the actual content of the job, not the job description, that matters. To prove your case in Court, you must show that the employer pays a male employee more than you for performing equal work. Once that is established, then your employer has to prove, if they can, that the pay difference is justified by one of the EPA’s four defenses. For example, those male and female bartenders in the same restaurant mentioned above cannot be paid differently unless the business can show that the inequality in pay is not due to the gender of the bartenders but because of one of the following:
1. The male bartender has seniority; 2. There is a bona fide merit system in place which is administered uniformly and systematically, i.e., fairly; 3. There is a system in place at the restaurant which establishes earnings for bartenders by the quantity or the quality of production (amount of drinks served or the manner in which they’re served); 4. There is another legitimate nondiscriminatory reason for the discrepancy other than the sex of the workers; 5. Any gender-neutral classification system.
There are of course, exceptions and distinctions within the law that require examination on a case by case basis. Generally speaking, the plaintiff (you), must prove that her job, compared with a male working in the same establishment, demands equal skill, effort and responsibility and is performed under similar working conditions. If the jobs are determined to be truly equal and there is a benefit discrepancy in favor of one sex to the detriment of the other sex (guess which sex is almost always the former and which is the latter), a complaint may be filed alleging violations of the EPA as well as sex discrimination charges under Title VII of the federal law (which must be filed with the Equal Employment Opportunity Commission within 300 days of the last discriminatory act). 1
There is much work yet to be done before women are truly integrated within the workforce and compensated fairly, and there are many sociological, psychological and political factors that need to be recognized and ultimately changed. Unfair and discriminatory wage practices lead to a smaller paycheck and often create long-term economic insecurity for families. Women are still concentrated in service sector positions such as teaching and nursing. The more an occupation is dominated by women, the less it pays. Many families rely heavily, if not exclusively, on women’s wages. When women are not paid equally and fairly, they’re not the only ones who suffer. Every family member is cheated as well.
A survey conducted in 1992 by Egan & Bendick showed that women in certain occupations who anegotiated for their salary added, on average, $3,500 to their pay. So, if you’re not earning what you’re worth, assert your rights and demand that your company show you the money.
The Equal Employment Opportunity Commission (EEOC), is the federal administrative agency that monitors human rights claims within the workplace. It is responsible for intake, investigation and conciliation of charges of discrimination under United States law. It also has the authority to commence a private lawsuit on behalf of the charging party, the person who is treated differently at work due to discrimination. Under federal law, your company must employ at least 15 people for you to be covered by the United States anti-discrimination laws. If your company has less than 15 employees, you may be able to pursue a claim under your individual state or city’s employment discrimination laws.
Consult with a plaintiff’s employment discrimination lawyer in your area before commencing any action or filing a charge. There are numerous variations and subtleties to be evaluated in each case and many different state and local laws that need to be considered.
By Jack Tuckner
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