The Equal Pay Act: overview and update.

The gender gap is still an issue, though more and more workers are beginning to understand that wage differentials based on sex ate illegal under the Equal Pay Act of 1963. If the facts show a disparity in pay between male and female employees, then a claim may be possible for relief under the Equal Pay Act which is part of the Fair Labor Standards Act. In the following helpful primer, the author present an overview of actions brought under the Equal Pay Act, along with cases explaining how courts interpret the Act. This information is essential to employees and their advocates who may be confronted with subtle, but nonetheless illegal, paycheck discrimination.

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Historically, women have been undervalued in the workplace. The Equal Pay Act is one statute designed to redress this undervaluing when it is manifested through discriminatory wages. Many practitioners overlook this statute, although it contains appealing components-strict liability, affirmative defenses, liquidated damages, and bypassing the EEOC administrative process to name a few. The following abstract of the Equal Pay Act will demonstrate how this statute can become a useful tool to redress sex-based wages in the workplace.

The Statute

The Equal Pay Act of 1963, enacted as part of a wage and hour law, provides as follows:

 
   No employer having employees subject to any provisions of this section 
   shall discriminate, within any establishment in which such employees are 
   employed, between employees on the basis of sex by paying wages to 
   employees in such establishment at a rate less than the rate at which he 
   pays wages to employees of the opposite sex in such establishment for equal 
   work on jobs the performance of which requires equal skill, effort, and 
   responsibility, and which are performed under similar working conditions, 
   except where such payment is made pursuant to (i) a seniority system; (ii) 
   a merit system; (iii) a system which measures earnings by quantity or 
   quality of production; or (iv) a differential based on any other factor 
   other than sex: Provided, That an employer who is paying a wage rate 
   differential in violation of this subsection shall not, in order to comply 
   with the provisions of this subsection, reduce the wage rate of any 
   employee. 

Prima Facie Case

To establish a prima facie case under the Equal Pay Act, the plaintiff must show that her employer pays her a lower wage rate than that of a male counterpart for equal work on jobs requiring equal skill, effort, and responsibility under similar working conditions in the same establishment. (1)

Once a prima facie case has been established, the burden shifts to the defendant to prove, by a preponderance of the evidence, that the wage differential is justified by (1) a seniority system, (2) a merit system, (3) a system pegging earnings to quality or quantity of production, or (4) any other factor other than sex. (2)

If the defendant fails to justify the wage differential under any of the four affirmative defenses set forth above, liability automatically is established. Unlike Title VII, which requires a showing of discriminatory intent to establish a sex-based wage differential, the Equal Pay Act plaintiff need not show intentional discrimination to establish liability. (3)

Equal Skill, Effort, and Responsibility

Skill refers to the level of experience, training, education, and ability needed to perform the jobs at issue. (4) Effort refers to the measurement of the physical or mental exertion needed for the performance of a job. (5) Responsibility refers to the degree of accountability required in the performance of the job with emphasis on the importance of the job obligation. (6) Generally, all three factors must be satisfied individually as opposed to collectively. (7)

When analyzing the equality of jobs, it is the requirements of the jobs, and not the qualifications and skills of persons holding the jobs, which must be analyzed. (8) Moreover, it is the job content, and not the job descriptions, titles, or classifications, which must be used to determine the equality of jobs. (9)

Similar Working Conditions

"`Similar working conditions' encompasses two subfactors: `surroundings' and `hazards.' `Surroundings' measure the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity and their frequency. `Hazards' take into account the physical hazards regularly encountered, their frequency and the severity of injury they can cause." (10)

Additional Tasks

When analyzing an employer's argument that the higher paid employees perform extra duties requiting additional skill, effort, and responsibility, there are often flaws in the employer's argument which defeat the argument's validity. (11)

Predecessor and Successor Employees Are Appropriate Comparators

Every circuit that has considered this issue recognizes that predecessor and successor employees are appropriate comparators under the Equal Pay Act. (12)

Equal Work Does Not Mean Identical Work

Equal does not mean identical. Insubstantial or minor differences in the degree or amount of skill, effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. (13) Moreover, the courts recognize that differences in subject matter and differences in allocation of time among various tasks do not necessarily defeat the equality of jobs. (14)

The employer must prove substantial additional duties of the higher paid employees, not assigned to the lower paid employees, to argue successfully that the level of responsibility is unequal. (15) "These additional duties must be substantial: `to argue that any difference in ... responsibility renders jobs unequal is manifestly incorrect as a matter of law.'" (16)

Within Any Establishment

The term "establishment" refers to a distinct physical place of business. (17) Two or more locations may constitute an establishment where there is integration of activities at such locations, centralized control of activities at such locations, centralized personnel activities and policies, and utilization of centrally imposed pay practices applied on a system-wide, area-wide or other geographical-wide basis throughout such locations. (18)

Defendant's Affirmative Defenses

Once a prima facie case has been established, the burden shifts to the defendant to prove, by a preponderance of the evidence, that the wage differential is justified by (1) a seniority system, (2) a merit system, (3) a system pegging earnings to quality or quantity of production, or (4) any other factor other than sex. (19) Explanations for the wage differential of employees based on reasons other than gender are affirmative defenses for which the defendant bears the burden of proof. (20)

If the defendant fails to justify the wage differential under any of the four affirmative defenses set forth above, liability automatically is established. The plaintiff need not show intentional discrimination to establish liability under the Equal Pay Act. (21)

Seniority System

A bona fide seniority system allocates rights, benefits, and wages according to an employee's length of employment. This defense has failed when applied inconsistently. (22)

Recently, courts have considered whether an employer's refusal to restore service credit for pregnancy related leave taken prior to the passage of the Pregnancy Discrimination Act to its female employees constitutes a violation of the Equal Pay Act. (23) In EEOC v. Bell Atlantic Corporation, (24) the company's retirement benefits were calculated according to length of service and the retirement benefits for female employees who were deprived of full service credit for pregnancy related leave prior to the passage of the Pregnancy Discrimination Act would therefore be lower than retirement benefits for males who were absent for nonpregnancy related …