Equal Pay Act requires Equal Pay for Equal Work

posted by Michael Fortney  |  Dec 15, 2009 1:19 PM in Employment Law:Workplace Issues

The Equal Pay Act specifically targets gender based pay differences. The Equal Pay Act prohibits unequal pay for substantially equal work. An employer therefore cannot pay male and female employees differently for doing substantially equal work.

To prove a violation of the Equal Pay Act, an employee must prove that

   1. he or she performs substantially equal work as a member of the opposite sex, or
   2. the employer reduced or did not increase the pay of an employee, at least in part, because of his or her sex.

Both males and females can bring claims under the Equal Pay Act.

Substantially Equal

Work is "equal" under the Equal Pay Act when jobs require equal skill, effort and responsibility and are performed under similar working conditions. 29 U.S.C. § 206(b)(1). The jobs under comparison do not have to be identical, but that have to be substantially equal.

Much of the litigation involving Equal Pay Act claims centers on how similar the higher paying job is to the lower paying job. When the similarity of the jobs is in dispute, the actual performance required by the job, and not the job titles or classifications, controls whether the jobs are substantially equal.

Equal skill includes factors such as the experience, training, education and ability necessary to perform the job. Equal effort refers to the kinds of physical and mental exertion required to do the jobs. Managing the sales of the same or similar product through differing sales channels may involve equal effort.  In one case, "hardline" and "softline" area supervisors in different departments performed equal work.  In another case, the fact that male and female sales managers handled different kinds of merchandise with different methods of stock replenishment did not render their jobs unequal.

Equal responsibility is primarily concerned with the degree of accountability required in the performance of the job. The Equal Pay Act puts the emphasis on the importance of the job function to the existence of the position. Where male and female sales executives are both responsible for sales through their respective sales channels and both have profit center accountability, they may have equal responsibility.

Finally, "similar working conditions" for an Equal Pay Act claim depends on:

   1. the physical surroundings of the work; and
   2. the frequency and severity of exposure to physical hazards.

Corning Glass Works v. Brennan, 417 U.S. 188 (1974). The Corning Court held that:

    [T]he element of working conditions encompasses two subfactors, "surroundings" and hazards". "Surroundings" measures the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity, and their frequency. "Hazards" takes into account the physical hazards regularly encountered, their frequency and the severity of injury they can cause.

417 U.S. at 202. If the employer or, better yet, the male and female employees themselves prepare job descriptions, their assessment of the hazards and physical requirements of the job can provide compelling evidence of the similarity of working conditions.
Employer defenses to Equal Pay Act Claims

An employee who proves that her employer pays her male peer more for doing substantially equal work has not necessarily won her case. The employer will win if the employer can prove that the unequal pay was made because of

   1. a seniority system;
   2. a merit system;
   3. a system which measures earnings by quantity or quality of production; or
   4. a differential based on any other factor other than sex.

An employer almost always claims that it paid one gender more than another based on a factor other than sex. One of the more common justifications offered by employers for pay that is not equal is "market rate." A market rate defense argues that the employer hired the male and female at market rates, such that differences would result from what the male and female employee had been able to earn in their prior jobs.

A market rate defense will not always work. The lower paid employee might show that the employer did not really have to pay the other employee a market rate by, for example, showing that the higher paid employee had not earned as much before his current employment. In addition, the lower paid employee can prove that her lower pay was the result of gender pay differences in her prior employment.

The Equal Pay Act is available to males as well as females. That is, if a male proves that an employer pays females more for doing substantially equal work, without justification, the male employee can recover for an equal pay act violation. In addition, an employer who is paying a wage rate differential in violation of the equal pay act may not, in order to make pay equal, reduce the wage rate of any employee.
Pay based on gender

The Equal Pay Act is actually part of the federal minimum wage and overtime law. In addition to the equal pay act, state and federal law also prohibit discrimination based on sex. This includes unequal pay for similarly situated males and females that is unequal, at least in part, because of the employee's gender.

A violation of the Equal Pay Act thus automatically violates federal and state anti-discrimination laws.  In addition, the anti-discrimination laws also apply where jobs are not necessarily "equal" under the Equal Pay Act but are similar enough to conclude that pay difference stem from gender distinctions.

Evidence of sex based wage differentials includes sex segregated jobs, management's singling out of the female manager for harsh criticism while being satisfied with comparable performance of male managers.

Revision History

Most Recent Articles

Ohio Court of Appeals Clarifies Time for Serving Notice of Furnishing under Mechanic's Lien Law In a case litigated by Michael L. and Michael R. Fortney of Stark & Knoll, the Court of Appeals for Ohio’s Ni ...
NLRB Declares Chipotle Company Policies Unlawful An Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued her ruling in the Chipotle case ...
Ohio Court of Appeals Upholds Arbitrator’s Authority When Arguably Construing or Applying Contract A recent ruling by the Ninth District Court of Appeals ruled that a trial court cannot vacate an arbitration award beca ...
Ohio Supreme Court Upholds Liquidated Damages Provisions in Construction Contracts The Ohio Supreme Court overturned the Fourth District Court of Appeals' holding that a $700 per day liquidated dama ...
2nd Circuit Agrees with NLRB; Facebook "like"s are Protected Activity In 2014 the National Labor Relations Board (NLRB) issued its ruling in  Triple Play Sports Bar . It decided that&n ...