Employment Law Attorneys

Equal Pay Discrimination

This article sets forth a discussion of the Equal Pay Act. When an employee believes that he/she is being paid lower wages than another employee for equal work the employee could commence an action under the Equal Pay Act. “The Federal Equal Pay Act (“FEPA”) prohibits wage discrimination “between employees on the basis of sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d).” Gu v. Boston Police Dept., 312 F.3d 6, 15 (1st Cir. 2002). This chapter will also provide information on what you should do if you believe that you have been paid wages less than that of another employee for equal work.
OVERVIEW OF EQUAL PAY ACT
The history of the Equal Pay Act reveals the evil that Congress was attempting to avoid in enacting the EPA. “Congress enacted the Equal Pay Act to remedy what was perceived as a serious and deeply engrained problem of employment discrimination in private industry: the fact that “[t]he wage structure of all too many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.” Corning Glass Works v. Brennan, 417 U.S. 188, 818 F.2d 1148, 1152, 94 S.Ct. 2223, 41 L.Ed.2d. 1 (1974) (citing S.Rep. No. 176, 88th Cong., 1st Sess. 1, reprinted in 109 Cong. Rec. 8914, 8914 (1963)).” Wallace v. Medical Center of LA. at New Orleans, WL 22928789, *4 -5 (E.D.La.,2003).
The Equal Pay Act is an amendment to the Fair Labor Standards Act rather than a subset of Title VII. “In response to repeated industry fears about a new and unfamiliar bureaucracy being set up to administer the Act, Congress enacted its new sex discrimination legislation as an amendment to the minimum wage provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. Corning Glass Works, 818 F.2d at 1153.” Wallace v. Medical Center of LA. at New Orleans, 2003 WL 22928789, *5 (E.D.La.) (E.D.La.,2003).
The philosophy of the Equal Pay Act is equal pay for equal work. “In response to these concerns about the economic and social consequences of disparate wages, Congress adopted a solution that “was quite simple in principle: to require that ‘equal work will be rewarded by equal wages.” ‘ Corning Glass Works, 818 F.2d at 1152-53 (citation omitted).” Wallace v. Medical Center of LA. at New Orleans, 2003 WL 22928789, *5 (E.D.La.) (E.D.La.,2003). However, an employee bringing an Equal Pay Act claim does not have to show that the jobs were completely identical. ” ‘Equal work’ does not require that the jobs be identical, but only that there exist ‘substantial equality of skill, effort, responsibility and working conditions.’ ” Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799 (6th Cir.1998)(quoting Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir.1981)). Harrison-Pepper v. Miami University, 246 F.Supp.2d 854, 860 (S.D.Ohio,2003).
ELEMENTS OF EQUAL PAY ACT CLAIM
Courts have set forth the elements necessary to establish a cause of action for a violation of the Equal Protection Act. “Thus, to establish a prima facie case under the Equal Pay Act, a plaintiff must show: (1) that his or her employer is subject to the Act; (2) that he or she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and (3) that he or she was paid less than the employees of the opposite sex providing the comparison. Corning Glass Works, 818 F.2d at 1153 (citation omitted).” Wallace v. Medical Center of LA. at New Orleans, WL 22928789, *5 -6 (E.D.La.,2003).
The essence of an Equal Pay Act claim is different wages to opposite sex employees for equal work. “To state a claim for relief under the Equal Pay Act, plaintiff must establish a prima facie case of wage discrimination by showing that the employer pays different wages to employees of the opposite sex for substantially equal work. Corning Glass Works, 417 U.S. at 195, 94 S.Ct. 2223. To be “substantially equal,” the jobs need not be identical, but must require similar skills, effort and responsibility performed under similar conditions. 29 U.S.C. § 206(d); Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), aff’d on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); see also EEOC v. Maricopa County Community College District, 736 F.2d 510, 513 (9th Cir.1984).” Wachter-Young v. Ohio Cas. Group , 236 F.Supp.2d 1157, 1161-1162 (D.Or.,2002). See also, Gu v. Boston Police Dept., 312 F.3d 6, 15 (1st Cir. 2002) (To establish a prima facie case for discrimination under FEPA, a plaintiff must establish “that the employer paid different wages to a member of the opposite sex for substantially equal work.” Rodríguez v. Smithkline Beecham, 224 F.3d 1, 6 (1st Cir.2000).
EQUAL PAY ACT DISCUSSION
1. Different Wages To Males and Females
Proof of an Equal Pay Act claim is quite straightforward and can be done on a step- by- step basis. The first inquiry in establishing a prima facie case of unequal wages to male and female employees in violation of the Equal Pay Act, is whether the employer did in fact pay unequal wages to male and female employees. “The first element of an EPA claim is whether the employer pays different wages to employees of the opposite sex.” Pfeiffer v. Lewis County, 308 F.Supp.2d 88, 98 (N.D.N.Y.,2004).
What pay do courts actually look at in determining if the pay is the same or different? The answer is all pay. This differs from other definitions of wages under the Fair Labor Standards Act. Accordingly, a plaintiff demonstrating that he/she is paid less than another employee of a different gender would include all pay including, but not limited to, bonuses, expense accounts, vacation, holiday pay and premium payments for work done on weekends and holidays. “Under the EPA, the term “wages” generally includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name. Fringe benefits are deemed to be remuneration for employment. “Wages” as used in the EPA (the purpose of which is to assure men and women equal remuneration for equal work) will therefore include payments which may not be counted under section 3(m) of the FLSA toward the minimum wage (the purpose of which is to assure employees a minimum amount of remuneration unconditionally available in cash or in board, lodging or other facilities). Similarly, the provisions of section 7(e) of the FLSA under which some payments may be excluded in computing an employee’s “regular rate” of pay for purposes of section 7 do not authorize the exclusion of any such remuneration from the “wages” of an employee in applying the EPA. Thus, vacation and holiday pay, and premium payments for work on Saturdays, Sundays, holidays, regular days of rest or other days or hours in excess or outside of the employee’s regular days or hours of work are deemed remuneration for employment and therefore wage payments that must be considered in applying the EPA, even though not a part of the employee’s “regular rate.” 29 C.F.R. § 1620.10 (emphasis added).” Marting v. Crawford & Co. , 203 F.Supp.2d 958, 966 (N.D.Ill.,2002).
2. Equal Work
The next inquiry is whether the pay was for substantially equal work. “The second element of an EPA claim is whether the employees perform equal work on jobs requiring equal skill, effort, and responsibility.” With regard to the second point, ‘[a] plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are substantially equal’ in skill, effort, and responsibility.” Lavin, 239 F.3d at 479 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995)). “[W]here jobs are merely comparable, an action under the Equal Pay Act will not lie.” Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir.1993). “[T]he standard under the Equal Pay Act is job content and not job title or description.” Tomka, 66 F.3d at 1310. Often, “[w]hether two positions are ‘substantially equivalent’ for Equal Pay Act purposes is a question for the jury.” Lavin-McEleney, 239 F.3d 476, 480. Of course, there will be circumstances where the evidence in the record is such that no fair-minded trier of fact could reasonably conclude that the two positions are substantially equivalent and, thus, summary judgment will be proper.” Pfeiffer v. Lewis County, 308 F.Supp.2d 88, 99 (N.D.N.Y.,2004). See also, Nixon v. Autauga County Bd. of Educ., 273 F.Supp.2d 1292, 299 (M.D.Ala.,2003)
(“A court examining whether jobs are substantially equal must examine the actual duties of the positions because a “controlling factor under the Equal Pay Act is job content–the actual duties the respective employees are called upon to perform.” Pearce, 590 F.2d at 133. Indeed, where a plaintiff’s job does not include additional significant responsibilities performed by the comparators who are paid more money, the requisite substantial identity of job functions requirement of the prima facie case is not met, and the employer is entitled to summary judgment. Waters, 874 F.2d at 800.”).
There are three specific elements that courts look at when comparing a particular job’s duties. These are skill, effort and responsibility. “The EPA specifies three separate elements that are to be considered in comparing job duties: skill, effort and responsibility. See 29 U.S.C. § 206(d)(1). Each of these elements must be met individually to establish a prima facie case. See 29 C.F.R. § 1620.14. [FN1] Moreover, the jobs must be performed under similar working conditions. See 29 U.S.C. § 206(d)(1); Stopka, 141 F.3d at 685.” Cullen v. Indiana University Bd. of Trustees, 338 F.3d 693, 698-699 (7th Cir. 2003)
3. Comparable With Regard To Skill
In determining whether two jobs are comparable with regard to skill, courts examine the experience, training, education and ability required to perform each job. “Skill includes consideration of such factors as experience, training, education, and ability.” 29 C.F.R. § 1620.15(a).” Cullen v. Indiana University Bd. of Trustees, 338 F.3d 693, 699 (7th Cir. 2003).
An analysis of whether the jobs are substantially equal requires that “the jobs should share a “common core” of tasks and neither job should have so many additional tasks as to make it substantially different from the other. Id.; see also Hein v. Oregon College of Education, 718 F.2d 910, 917 (9th Cir.1983) (if a claim could be defeated by showing plaintiff had additional duties, employers could easily subvert the intent of the Equal Pay Act).” Wachter-Young v. Ohio Cas. Group, 236 F.Supp.2d 1157, 1162 (D.Or.,2002). See also, Cullen v. Indiana University Bd. of Trustees, 338 F.3d 693, 698 (7th Cir. 2003) (“In determining whether two jobs are equal, the crucial inquiry is “whether the jobs to be compared have a ‘common core’ of tasks, i.e., whether a significant portion of the two jobs is identical.” Fallon v. Illinois, 882 F.2d 1206, 1209 (7th Cir.1989) (citations and quotation marks omitted). Once the plaintiff establishes a common core, the court must ask whether any additional tasks make the jobs “substantially different.” Id. (citation and quotation marks omitted). Significantly, the EPA does not require proof of discriminatory intent. See Stopka, 141 F.3d at 685.”); Marting v. Crawford & Co., 203 F.Supp.2d 958, 965 (N.D.Ill.,2002)(“The plaintiff would have to show that the jobs compared are substantially equal, “based upon ‘actual job performance and content–not job titles, classifications or descriptions.’ ” Id. at 913, citing EEOC v. Mercy Hosp. and Med. Ctr., 709 F.2d 1195, 1197 (7th Cir.1983).”
4. Rebuttal of Prima Facie Case
Once a plaintiff has established that in fact the employer is paying different wages to male and female employees for equal work on jobs requiring equal skill, effort and responsibility the plaintiff has established a prima facie case. The employer then may rebut the prima facie case with a variety of affirmative defenses that are set forth in the statute. “To rebut the prima facie case, an employer has several affirmative defenses under FEPA, including that the discrepancy resulted from a pay system based on: (1) seniority; (2) merit; (3) quantity or quality of production; or (4) another differential based on a factor other than sex. 29 U.S.C. § 206(d)(1); Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir.1995).” Gu v. Boston Police Dept., 312 F.3d 6, 15 (1st Cir. 2002). See also, Harrison-Pepper v. Miami University, 246 F.Supp.2d 854, 860 (S.D.Ohio,2003) (“Once the plaintiff in an Equal Pay Act case has established a prima facie case, the burden shifts to the defendant to prove one of four affirmative defenses, which “authorize an employer to differentiate in pay between sexes.” Bence v. Detroit Health Corp., 712 F.2d 1024, 1029 (6th Cir.1983) (citation omitted), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984). Those affirmative defenses include (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; and (4) a differential based on any other factor other than sex..”.); Marting v. Crawford & Co., 203 F.Supp.2d 958, 965-966 (N.D.Ill.,2002)(“The Seventh Circuit has recognized that the fourth affirmative defense is a broad, catch-all exception that embraces a nearly limitless array of ways to distinguish among employees. Fyfe v. City of Fort Wayne, 241 F.3d 597, 600 (7th Cir.2001).”).
5. Pretext
Similar to the prong shifting burden analysis in Title VII cases, once the employer has asserted the affirmative defenses under the EPA, the plaintiff must then rebut the affirmative defenses by demonstrating that the defenses are pretextual. “When the defendant overcomes the burden, the plaintiff must rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential. See Schwartz, 954 F.2d at 623. If plaintiff is able to create the inference of pretext, there is an issue which should be reserved for trial; otherwise summary judgment is appropriate.” Nixon v. Autauga County Bd. of Educ., 273 F.Supp.2d 1292, 1299 (M.D.Ala.,2003).
COMPARISON OF EQUAL PAY CLAIMS UNDER EQUAL PAY ACT AND TITLE VII
A plaintiff could choose to commence an action for unequal pay under either the Equal Pay Act or Title VII. However the elements necessary to prove each cause of action differ. “Under both the Equal Pay Act and Title VII, a plaintiff must show a prima facie case of discrimination. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir.1994). The standards under the Equal Pay Act and Title VII are slightly different. Under the Equal Pay Act, a plaintiff must show that the employer paid “different wages to employees of opposite sexes for equal work in jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions.” Brinkley-Obu, 36 F.3d at 343. Under Title VII a plaintiff need only show that ” ‘the job she occupied was similar to higher paying jobs occupied by males,’ ” a burden which is less stringent that the Equal Pay Act requirement. Brinkley-Obu, 36 F.3d at 343 (citation omitted). Put another way, a Title VII claimant can establish a prima facie case by showing she is a member of a protected class (female), and that the job she occupied was similar to higher paying jobs occupied by males. Id. at 343. Once a claimant has established a prima facie case under either, the burden then shifts to the employer to put forth a legitimate reason for the disparity. Under the Equal Pay Act, the defendant has a burden of production and persuasion and has to demonstrate that the wage differential was caused by “any factor other than sex.” Id. at 344. If the defendant cannot meet this burden, the plaintiff must win. Under Title VII, the burden is only of production; then the burden shifts back to the plaintiff to show that the proffered reason for the disparity is pretext for discrimination.”. Pettiford v. North Carolina Dept. of Health and Human Services , 228 F.Supp.2d 677, 688 (M.D.N.C.,2002). See also, Conti v. Universal Enterprises, Inc., 50 Fed.Appx. 690, 698, 2002 WL 31108827, **5 (6th Cir.2002)(A claim of disparate pay for equal work is essentially the same whether pursued under Title VII or the Equal Pay Act. Henry v. Lennox Industries, Inc., 768 F.2d 746, 752 (6th Cir.1985)(citing Odomes, 653 F.2d at 250). The plaintiff must ordinarily show that the employer paid different wages to employees of opposite sexes for substantially equal work. Id.).
The major difference a plaintiff faces in choosing Title VII over the Equal Pay Act is that under Title VII the plaintiff would have to prove discriminatory intent. “Unlike Title VII, however, the EPA does not require plaintiff to establish an employer’s intent.” Swihart v. Pactiv C orp., 187 F.Supp.2d 18, 25 (D.Conn.,2002). See also, Bliss v. Rochester City School Dist, 196 F.Supp.2d 314, 341 (W.D.N.Y.,2002)(“To state an equal pay claim under the EPA or Title VII, plaintiff must show that: “i) [her] employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions.” See Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995). Equal pay claims are generally analyzed according to the same standards under both the EPA and Title VII, although to succeed on a Title VII claim, the plaintiff must also produce evidence of a discriminatory animus. Id. at 1312-13.
Accordingly, in an Equal Pay Act action all that is required is a showing of payment of different wages for substantially equal work. No proof of discriminatory intent is required. “The Act creates a type of strict liability in that no intent to discriminate need be shown. Maxwell, 803 F.2d at 446 (citations omitted); see Garner, 95 F.Supp.2d at 1075 (standards for granting summary judgment are rigorous).” See also,Wallace v. Medical Center of LA. at New Orleans , 2003 WL 22928789, *6 (E.D.La.,2003)(“Unlike the showing required under Title VII’s disparate treatment theory, proof of discriminatory intent is not required to establish a prima facie case under the Equal Pay Act. Id. at 1153 (citation omitted).”). Wachter-Young v. Ohio Cas. Group , 236 F.Supp.2d 1157, 1162 (D.Or.,2002).
Some employers have argued that a plaintiff who is unable to establish an Equal Pay Act claim should be precluded from also proceeding under Title VII. However, the U.S. Supreme Court did not agree. “A plaintiff who fails to satisfy the equal work standard of the Equal Pay Act, however, is not necessarily precluded from proceeding under Title VII. See County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). In Gunther, the Supreme Court examined the effect of the Bennett Amendment, which comprises the last sentence of § 703(h) of Title VII, on claims for gender-based wage discrimination brought under Title VII. The Bennett Amendment provides that it shall not be an unlawful employment practice for any employer to differentiate upon the basis of sex in determining the amounts of its employees’ wages if such differentiation is authorized under the Equal Pay Act. The Supreme Court held that an individual may bring a claim for gender-based wage discrimination under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided the challenged wage rate is not exempted under the Equal Pay Act’s affirmative defenses. The Supreme Court indicated that a plaintiff holding a unique position within a company could obtain legal redress under Title VII if the plaintiff proved that the employer admitted it would have paid the plaintiff more if she were a male or if the plaintiff demonstrated that “a transparently sex-biased system for wage determination” was a pretext for discrimination. Id. at 178-79. In rendering its decision, the Supreme Court expressly refrained from deciding “the precise contours of lawsuits challenging sex discrimination in compensation under Title VII.” Id. at 181. The Court found it “sufficient to note that respondents’ claims of discriminatory undercompensation are not barred by § 703(h) merely because respondents do not perform work equal to that of male jail guards.” Id.” Conti v. Universal Enterprises, Inc., 50 Fed.Appx. 690, 698, 2002 WL 31108827, *6 (6th Cir. 2002).
EQUAL PAY ACT AS IT RELATES TO YOU IN THE WORKPLACE
1. What To Do If You Believe You Have Been Paid Unequal Wages
The Equal Pay Act is enforced by a different agency than Title VII. If you believe that you have been paid unequal wages to that of another employee for equal work you could file a complaint with the Department of Labor in your jurisdiction. Contact your state or federal Department of Labor. For further information, contact Mark Carey at 203-255-4150 or mcarey@capclaw.com. Prior to doing this you should consider the factors listed above and do an analysis of your job and the job of the employee that you believe is being paid more. Ensure that you look at both your and the other employee’s position to accurately compare the jobs with regards to the skill, effort and responsibility necessary to perform the job.
a. Statute of Limitations
It is important for you to get legal advice as to whether you should commence an action because you only have a limited period in which you could file an Equal Pay Claim. The Equal Pay Act has a two-year statute of limitations unless the act is alleged to be willful. “Inasmuch as Fayson does not allege that the pay discrimination was willful, the EPA’s two-year statute of limitation is applicable. See 29 U.S.C. § 255(a).” Fayson v. Kaleida Health, Inc., 2002 WL 31194559, *4 (W.D.N.Y.,2002).
b. Title VII
You could also file a discrimination claim under Title VII with the EEOC or your local fair employment agency claiming that you were paid less than a similarly situated employee and that the difference in pay was discriminatory based upon your gender.
2. What to Do If You Have Been Accused of Paying an Employee Unequal Wages
If you have been accused of this either verbally or by receiving a written complaint from an employee you should immediately contact your human resources department and/or in-house counsel. Some courts have held that there can be individual liability under the Equal Protection Act. If you in your individual capacity have been accused of violating the Equal Protection Act you should consult with your own legal counsel as to what your rights are and whether it will be necessary for you to retain your own legal counsel separate and apart from that of your corporation.