E. The Equal Pay Act of 1963

One common form of illegal activity pertains to unequal pay for equal work. For example, one major university was ordered to pay 117 women an award of $1.3 million after a Federal Court judge ruled that the university paid less money to women on the faculty than to men in comparable posts.

The Equal Pay Act (EPA) prohibits covered employers with two or more employees from paying unequal wages to male and female employees who perform substantially the same jobs. While the EPA and the Civil Rights Act of l964 both prohibit sex discrimination in the workplace, the EPA has limited application since it applies only to wage inequities between the sexes. When equal skill, effort and responsibility for the same job are required, equal pay must be given. Further, an employer may not retaliate against a female worker, such as by firing her, because an EPA charge was initiated or her testimony was given. A female worker may seek damages in federal or state court or through the EEOC, and may obtain a trial by jury. Successful litigants are entitled to recover retroactive backpay, liquidated damages, reasonable attorney fees and costs.

Employers may pay differential wages if there is a bona fide pre-established seniority system, a merit system or a system which measures earnings by quantity or quality of production or if the differential is based on a legitimate factor other than sex. However, the EEOC is empowered to investigate carefully all charges made pursuant to the EPA within two years after the cause of action accrued to determine whether the company-offered exclusions are valid. Key provisions of this law are:

• Employers are obligated to maintain and save records docu- menting wages paid to each employee.
• Once a plaintiff shows that she performs work in a position requiring equal skill, effort, and responsibility under similar working conditions, and that she was paid less than employees of the opposite sex, the burden shifts to the employer to show an affirmative defense that any wage differential is justified by a permitted exception. Practices that perpetuate past sex discrimin- ation are not accepted as valid affirmative defenses.
• If willful violations (defined as reckless disregard of the law) are found, double backpay may be awarded.
• Fringe benefits are included in the definition of wages under the law. Thus, employers cannot differentiate with items such as bonuses, expense accounts, profit-sharing plans, leave benefits, etc.
• Under the EPA, it is not a defense to a charge of sex discrim- ination in benefits that the costs of such benefits are greater with respect to one sex than the other.

Counsel Comment #110: Always prepare precise job descriptions that demonstrate different duties and respon- sibilities for different pay. When offering jobs with different salaries and benefits, try to give those with extra duties to applicants on the basis of additional education and work experience, rather than sex. Investigate all charges of unequal pay immediately and without bias. It is also a good idea to perform audits periodically within each unit or department of the company to ensure that no EPA violations have occurred.