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.

The Equal Pay Act Turns 50 - So What Does It Add Anyway?

Last month, the Equal Pay Act, a powerful if somewhat overlooked federal employment discrimination law, turned 50 years old.  Many employers and employees mistakenly believe that the Equal Pay Act (“EPA”) provides identical, redundant protection to that provided by the Civil Rights Act of 1964, the much more widely applied legislation known as Title VII.  In fact, the Equal Pay Act provides additional protections that are often times overlooked in the employment arena.

First, the Equal Pay Act does not require an aggrieved employee to file a charge of discrimination with the EEOC.  Therefore, an employee who has missed the relatively short deadline within which to file a charge of discrimination can still pursue a lawsuit under the EPA.  The statute of limitations under the EPA is two years.  The limitations period actually expands to three years in cases of willful employer violations.

Also unlike Title VII, the Equal Pay Act does not limit its reach to employers of at least 15 employees.  Consequently, small employers who escape regulation by Title VII can still be sued for pay discrimination under the EPA.

Like Title VII, the Equal Pay Act enables a prevailing employee to recover his or her attorney’s fees.  In addition, the EPA allows employees to obtain liquidated damages, which is an amount equal to the back pay awarded for the Equal Pay Act violation.  Although the EPA does not allow for punitive damages per se, the liquidated damages award essentially serves a punitive purpose.

Perhaps the greatest distinction between the two statutes is that an aggrieved employee is not required to prove discriminatory intent under the Equal Pay Act.  Instead, an employee need only prove that he or she received lower pay for substantially equal work as members of the opposite gender.  To some extent, this distinction makes proving an EPA claim easier.  The EPA does, however, also provide employers with certain specified defenses, such as merit and seniority systems and systems under which pay is determined by quantity or quality of production.

Even after fifty years under the Equal Pay Act, wage disparities remain commonplace.  Determining whether such a disparity constitutes a violation of the Equal Pay Act and/or Title VII can be a difficult and deceptive task requiring experienced counsel.