Although the Equal Pay Act (“EPA”) was passed 55 years ago, women still do not earn equal wages as their male peers.
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If you believe that you are the victim of sex-based pay discrimination, the EPA is in existence to protect you.
The EPA, passed in 1963 as an amendment to the Fair Labor Standards Act (“FLSA”), is a federal law that prohibits pay discrimination in the workplace on the basis of gender and requires employers to pay men and women equally for doing the same work – equal pay for equal work.
The EPA requires that employers pay similarly situated employees in the same establishment the same wage, regardless of sex, if they perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions.
The law covers all types of payments made to employees, including salary, overtime pay, bonuses, stock options, life insurance, vacation and holiday pay, allowances, reimbursements, expenses, and benefits.
The EPA requires more than equal wages. If employees do equal work, they are also entitled to equal profit sharing and bonuses, as well as equal fringe benefits, such as equal health and life insurance coverage, retirement plans or pensions, pre-tax medical or dependent care savings accounts.
The EPA requires that employers pay workers at the same rate, but it doesn’t require that employees all receive the same total amount of compensation. If one worker earns more than another because of higher productivity – for example, because the higher-paid employee has made more sales – that does not violate the EPA.
In the early 20th century, women made up about 25% of the workforce. Plus, the women that were able to find jobs were paid far less than men performing the same jobs. Until the early 1960s, newspapers published separate job listings for men and women. Jobs were categorized according to sex, with the higher-level jobs listed almost exclusively under “Help Wanted—Male.”
In some cases, the ads ran identical jobs under male and female listings—but with separate and unequal pay scales. In fact, between 1950 and 1960, women with full time jobs earned on average of 59–64 cents for every dollar their male counterparts earned in the same job.
In 1963, the EPA was passed, which prohibited employers who were subject to the Fair Labor Standards Act of 1938 (under which the new law fell) from paying employees differently, based on gender, for work that required “equal skill, effort, and responsibility.”
If employees do equal work, they are also entitled to equal profit sharing and bonuses, as well as equal fringe benefits, such as equal health and life insurance coverage, retirement plans or pensions, pre-tax medical or dependent care savings accounts.
While the wage gap between men and women has decreased since the EPA was passed, we still have a long way to go. While it varies, the gap persists across the wage distribution and at all education levels. The problems are exacerbated for women of color, with black and Hispanic women getting paid 66% and 60%, respectively, of what men earn for the same work.
The EPA requires that men and women be given equal pay for equal work for the same employer at the same establishment. Specifically, the EPA provides that employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, under similar working conditions within the same establishment.
The jobs need not be identical, but they must be substantially equal. It is important to remember that it is the job duties and responsibilities, not the job titles, that determine whether jobs are substantially equal. Each of these factors is summarized below:
Skill: Skill is measured by numerous factors, such as the experience, ability, education, and training required in performing the job. The focus is on the skills that are required to perform the job, and not skills that an individual employee may have that are unrelated to the job.
For example, two accounting positions would be considered equal under the EPA even if one of the accountants had obtained a master’s degree in history, since that master’s degree is not required for the position.
Effort: The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and places it on a board.
That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the position is held by a man or a woman.
Responsibility: Responsibility is defined by the EPA as the degree of accountability required in performing the job. For example, an employee who is given the extra duty of having the keys to open the shop every day has more responsibility than other store employees.
The jobs need not be identical, but they must be substantially equal. It is important to remember that it is the job duties and responsibilities, not the job titles, that determine whether jobs are substantially equal.
However, a minor difference in responsibility, such as turning on or off the lights at the beginning or end of the day would not be a significance difference in responsibility justifying a pay differential under the EPA.
Working Conditions: Under the EPA, working conditions are dependent on two factors: (1) physical surroundings such as temperature, fumes, and ventilation; and (2) hazards.
Establishment: The EPA applies only to jobs worked by employees in the same establishment, which is typically defined as physical location rather than an entire business or enterprise consisting of several locations for the business.
While the EPA only prohibits discrimination based on sex regarding wages, Title VII bars many other forms of employment discrimination based on sex/gender, including, for example, discrimination in hiring, firing, and promotions as well as in pay.
Title VII also protects classes in addition to sex, including race, color, religion, and national origin. Some, but not all, of the other differences between the statutes relate to statute of limitations and coverage. Title VII does not apply to employees who work for an employer with fewer than 15 employees, while virtually all employers are covered under the EPA.
In cases where both Title VII and the EPA apply, using the EPA offers some potential advantages, including:
However, one of the advantages of Title VII is related to the amount of monetary damages one can recover. Under Title VII, an employee who was unlawfully discriminated against is not only entitled to his or her lost wages but is also entitled to damages for emotional distress.
The EPA does not offer these emotional distress damages, although in some cases you can collect double the amount of wages you lost as a penalty against the employer in the form of liquidated damages. If you are considering a lawsuit under the EPA, Title VII, or both, you should discuss the potential advantages and disadvantages of each law with an employment lawyer before filing your case.
Many employees file claims under both the EPA and Title VII. There are several reasons you might choose to file under the EPA or to include both EPA and Title VII claims. The laws are technical and complicated, and it is important not to waive your rights under either statute. So, if you think you do want to bring an gender-based employment discrimination claim, make sure to first discuss your options with an employment attorney.
To successfully establish a prima facie case under the EPA, you must show that you and an employee of the opposite sex are:
Remember that equal work does not require identical job titles. Rather, equal work is interpreted as work requiring substantially equal levels of skill, effort, and responsibility. However, if the employer can show that the wage disparity has a legitimate basis – for example, that the higher earner has more seniority or more experience – the claim will be defeated.
If you suspect that you’re facing sex-based pay discrimination, you should:
Remember that an employer can justify the pay gap by showing that it exists due to:
While the first three factors are straightforward, that last category is where employers get creative when trying to make Equal Pay Act cases dismissed. Employer may say the higher paid employee has more experience or training, or that he was simply a better negotiator.
In addition, just obtaining the salary information to show the pay differential can be difficult—especially when employees are discouraged from discussing what they’re paid. Once the disparity is established, the burden of proof is on the employer to show that the reason was a legitimate and non-discriminatory one.
Under the EPA, you have two (2) years from the day you received the last discriminatory paycheck (this is extended to three years in the case of willful discrimination) to either file an EEOC charge or file a lawsuit in court.
In Corning Glass Works v. Brennan, 417 U.S. 188 (1974), the plaintiff claimed unlawful discrimination because men worked on night shifts and were paid more, while women were only allowed to work on day shifts and were paid less. The employer argued that the jobs were different – the time of day when work was performed should be considered when determining if ‘working conditions’ were sufficiently similar.
The employer argued this was a legitimate defense – that pay differences result from a seniority or merit system unrelated to sex. The Supreme Court held that the claim was allowed to go forward because although the women worked at different times in the day as compared to male colleagues, the working conditions were “sufficiently similar.”
Do you feel that you are unfairly paid because of gender-based discrimination? You have a right to protect your interests under the EPA and Title VII.
Contact an Employment Lawyers NYC at the Law Offices of Yuriy Moshes, P.C. We help workers in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.