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Equal Pay and Compensation Discrimination: Facts

Compensation discrimination in employment is prohibited by a number of federal laws, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990. All of these laws are enforced by the U.S. Equal Employment Opportunity Commission (EEOC). Collectively, these statutes require employers to compensate employees without regard to race, color, religion, sex, national origin, age, or disability.

The law against compensation discrimination includes all payments made to or on behalf of employees as remuneration for employment, such as salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.

Equal Pay Act

The Equal Pay Act requires that employees be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Each of these factors are summarized below:

  • Skill - Including experience, ability, education, and training required to perform the job. What skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master's degree in physics, since that degree would not be required for the job.
  • 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 place 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 job is held by a man or a woman.
  • Responsibility - The degree of accountability required in performing the job. A minor difference in responsibility, such as assignment of the task of locking up at the end of the day, would not justify a pay differential.
  • Working Conditions - Two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards. For example, suppose a male nurse's aide who works in a hospital is paid less than a female nurse's aid who works in patients' homes. This difference generally does not qualify as a difference in working conditions that would justify a pay differential, because the physical surroundings and hazards in the two locations typically are similar.
  • Establishment - This applies only to jobs within any establishment, i.e. a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. However, in some circumstances, physically separate places of business should be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to work locations, the separate work sites can be considered part of one establishment.

Affirmative Defenses

Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. These are known as "affirmative defenses" and it is the employer's burden to prove that they apply.

In correcting a pay differential, no employee's pay may be reduced. Instead, the pay of the lower paid employee(s) must be increased.

Title VII, ADEA, and ADA

Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, or disability. Unlike the EPA, there is no requirement that the claimant's job be substantially equal to that of a higher paid person outside the claimant's protected class, nor do these statutes require the claimant to work in the same establishment as a comparator. The basic theories of disparate treatment and adverse impact generally apply to compensation discrimination claims under these statutes.

Compensation discrimination can occur in a variety of forms. For example:

  • An employer pays an employee with a disability less than similarly situated employees without disabilities and the employer's explanation (if any) does not satisfactorily account for the differential.
  • A discriminatory compensation system has been discontinued but still has lingering discriminatory effects on present salaries. For example, a compensation policy that pays Hispanics lower salaries than other employees.
  • An employer sets the compensation for jobs predominately held by, for example, women or African-Americans below that suggested by the employer's job evaluation study, while the pay for jobs predominately held by men or whites is consistent with the level suggested by the job evaluation study.
  • An employer maintains a neutral compensation policy or practice that has an adverse impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity. For example, if an employer provides extra compensation to employees who are the "head of household," i.e., married with dependents and the primary financial contributor to the household, the practice may have an unlawful disparate impact on women.

Consulting an Employment Attorney

If you are facing a compensation discrimination claim under the Equal Pay Act, you'll want to speak to a knowledgable attorney in your area. A skilled employment attorney can help you discover if you have any defenses available to you and what the next steps should be.

Next Steps
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