Equal Pay for Equal Work -- It's ALREADY the Law (and has been for 50+ years)

Sometimes in the heat of a political campaign year slogans and promises take root that seem to forget reality.  One that has become quite popular in recent years is the suggestion that legal reform is needed in order to ensure women equal pay for equal work.  Because the premise seems so fundamentally fair and noble, the media has adopted this rallying cry as well.

The only problem is that we have had a federal law requiring this very thing for over fifty years.  Called, logically enough, the Equal Pay Act of 1963, it has been the subject of a previous post here. Here are some of the remarks made by President Kennedy upon signing the legislation:

I AM delighted today to approve the Equal Pay Act of 1963, which prohibits arbitrary discrimination against women in the payment of wages. This act represents many years of effort by labor, management, and several private organizations unassociated with labor or management, to call attention to the unconscionable practice of paying female employees less wages than male employees for the same job.

In short, it has long been the law in all fifty states that an employer cannot discriminate on the basis of gender in setting pay rates.  Not only does the EPA forbid this, Title VII of the Civil Rights Act of 1964 does as well.

So why the confusion?  And why aren't all women paid the exact same as male counterparts?  Because the EPA does not eliminate the employer's ability to consider distinguishing credentials, skills, job performance, or other bona fide business considerations is setting a given employee's pay.  Employers can still pay more for more advanced degrees, more valuable experience, greater business contacts, or other legitimately distinguishing credentials.  Similarly, employers can still pay lower performing employees less.  As such, if an employee has poor attendance, is chronically late to work, is prone to poor work product, the employer can, and arguably should, pay less than better performing peers.  But if a woman is paid less than a man for the same work and in the absence of any bona fide business reason, she can sue the employer for the difference in pay and attorney's fees.  In fact, in the case of a willful violation, the underpaid employee can collect liquidated damages as well.

Furthermore, an employer's mere offering of a purported justification for lower pay does not set the employer free.  The employee can still offer evidence to show that the justification is a pretext, or phony excuse, for the disparity.

In short, and at the risk of diluting a good campaign rallying cry, equal pay for equal work is already the law of the land.