By law women must be paid the same as men are paid for the same work at the same place!! However, this frequently does not happen. Actually, in 2016 women were paid roughly 77 percent of what men were paid, and would have had to work until April 4, 2017 to earn the same amount as men.
The Equal Pay Act has been in the news lately. Last year five members of the U.S. Women’s Soccer Team filed a complaint against U.S. Soccer, the governing body for the sport in the United States, claiming they were victims of sex-based wage discrimination. As a result, they have recently announced a new, significantly larger, salary contract for the entire team.
Why don’t more women avail themselves of the law?
It is not new!
The Equal Pay Act (EPA) was signed into law by President Kennedy in 1963 as part of the Fair Labor Standards Act.
It is not difficult to pursue a claim!
Unlike Title VII claims alleging discrimination in employment on the basis of race, color, national origin, religion, or sex, a woman making an EPA claim is permitted to go directly to court and is not required to file a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC). Anyone making an EPA claim must file her claim, either with the EEOC or by filing suit with an appropriate court within two years of the date that the violation occurs. However, if the violation of the EPA was willful, then she has three years to make a claim.
Women can receive damages – up to twice what they lost- plus attorneys’ fees!
The remedy for a violation of the EPA is a salary increase and back pay in the amount of the unlawful difference between the wages of the lower and higher paid employees. (The EPA explicitly prohibits lowering the pay of any employee to correct a discriminatory pay differential.) In addition, the EPA permits recovery of an equal amount as liquidated damages. The EPA limits the recovery of back pay for up to two years before the filing of suit, or three years if the violation was willful. A successful claimant is also entitled to recover her attorney’s fees and costs.
If you are aware of the men’s pay, it is not difficult to prove a claim!
To demonstrate a violation of the EPA, a person making a claim must show that she received a lower wage than the employer paid to a male employee at the same establishment; and the employees perform substantially equal work (in terms of skill, effort, and responsibility) under similar working conditions. A woman making an EPA claim cannot compare herself to a hypothetical male; instead, she must show that a specific employee of the opposite sex earned higher compensation for a substantially equal job. If the employer cannot defeat the showing of unequal pay for substantially equal work, then to successfully defend the claim it must prove that the compensation difference is based on a seniority, merit, or incentive system, or on any other factor other than sex.
IT IS USUALLY BECAUSE PEOPLE DON’T DISCUSS WAGES IN THE WORKPLACE – SO WOMEN DON’T KNOW THAT MEN ARE MAKING SO MUCH MORE!
However, the National Labor Relations Act (NLRA) allows employees to discuss wages and salaries amongst themselves. The NLRA covers most, but not all private sector employees. The NLRA does not cover public-sector employees or supervisors. But this rule also applies to federal contractors pursuant to an Executive Order issued by President Obama in April 2014.
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What are considered “Wages?”
“Wages” under the EPA include all payments made to or on behalf of an employee as remuneration for employment. The term encompasses all forms of compensation, including fringe benefits. Thus, for example, if male and female employees performing substantially equal work receive equal salaries but unequal fringe benefits, an EPA violation can be established.
“Wage rate” is the measure by which an employee’s compensation is determined. It encompasses rates of pay calculated on a time, commission, piece, job incentive, profit sharing, bonus, or other basis. An employer that pays different wages to a male than to a female performing substantially equal work does not violate the EPA if the wage rate is the same. For example, if a male and a female employee performing substantially equal sales jobs are paid on the basis of the same commission rate, then a difference in the total commissions earned by the two workers would not violate the Act. Conversely, if the commission rates are different, then a prima facie violation could be established even if the total compensation earned by both workers is the same.
What counts as an “Establishment?”
The prohibition against compensation discrimination under the EPA applies to jobs “within any establishment.” An “establishment” is a distinct physical place of business rather than an entire business or enterprise that may include several separate places of business. For example, separate facilities of a chain store generally cannot be compared to each other. In certain circumstances, however, physically separate places of business should be treated as one establishment. This would be the case if a central administrative unit hires the employees, sets the compensation, and assigns work locations.
Substantially Equal Work
There is no requirement that the person making the complaint show a pattern of sex-based compensation disparities in a job category. However, the employer’s treatment of other women is relevant to the complaining person’s case — if other women are paid the same as or more than men, this may indicate that a factor other than sex explains the complaining person’s compensation. The comparators need not have held their jobs at the same time.
The important comparison in determining whether the “equal work” requirement is met is the comparison of the jobs, not the people performing the jobs. Thus, a difference between the comparators has no bearing on whether the jobs are equal. The critical question at this point in the analysis is whether the jobs involve equal work. However, a difference between the comparators could qualify as a defense to a compensation disparity.
The EPA speaks in terms of “equal work,” but the word “equal” in the EPA does not require that the jobs that are compared be identical, only that they be substantially equal. Thus, minor differences in the job duties, or the skill, effort, or responsibility required for the jobs will not render the work unequal. In comparing two jobs for purposes of the EPA, consideration should be given to the actual duties that the employees are required to perform. Job content, not job titles or classifications, determines the equality of jobs. The fact that jobs are in different departments is not determinative, although in some cases it may be indicative of a difference in job content.
In evaluating whether two jobs are substantially equal, an inquiry should first be made as to whether the jobs have the same “common core” of tasks, i.e., whether a significant portion of the tasks performed is the same. If a significant portion of the tasks performed in the two jobs is the same, an inquiry should be made as to whether the comparators perform extra duties which make the work substantially different. Jobs with the same common core of tasks are equal, even though the comparators perform extra duties, if the extra duties are insubstantial.
If the jobs to be compared share the same common core of tasks, consideration should be given to whether, in terms of overall job content, the jobs require substantially equal skill, effort, and responsibility and whether the working conditions are similar.
Skill is measured by factors such as the experience, ability, education, and training required to perform a job. Two jobs require equal skill for purposes of the EPA if the experience, ability, education, and training required are substantially the same for each job. On the other hand, if the jobs require different experience, ability, education, or training, then the jobs are not equal. The proper analysis is the functional one — the analysis of the skills the jobs actually require.
Effort is the amount of physical or mental exertion needed to perform a job. Job factors that cause physical or mental fatigue or stress are to be considered in determining the effort required for a job. Differences in the kind of effort exerted do not justify a compensation differential if the amount of effort is substantially the same.
Responsibility is the degree of accountability required in performing a job. Factors to be considered in determining the level of responsibility in a job include: the extent to which the employee works without supervision, the extent to which the employee exercises supervisory functions, and the impact of the employee’s exercise of his or her job functions on the employer’s business. Differences in job responsibilities do not depend on job titles. Thus, designation of an employee as a “supervisor” will not, by itself, defeat a comparison under the EPA with an employee who is not designated as such. Moreover, the mere fact that an employee has assistants does not necessarily demonstrate that he or she has a more responsible position than one who does not have assistants.
Working conditions consist of two factors, surroundings and hazards. “Surroundings” take into account the intensity and frequency of environmental elements encountered in the job, such as heat, cold, wetness, noise, fumes, odors, dust, and ventilation. “Hazards” take into account the number and frequency of physical hazards and the severity of injury they can cause. The fact that jobs are performed in different physical surroundings does not necessarily defeat a finding that the working conditions are similar.
Comparability of “working conditions” is measured by a more flexible standard than skill, effort, or responsibility, because the statute only requires that the working conditions be “similar,” not “equal.” Similarity of working conditions is seldom in dispute because employees who perform jobs requiring substantially equal skill, effort, and responsibility are likely to be performing them under similar working conditions.
Seniority, Merit, or Incentive System Defense
A seniority, merit, or incentive system must be bona fide to operate as an EPA defense. This means it was not adopted with discriminatory intent, and that it contains predetermined criteria for measuring seniority, merit, or productivity, has been communicated to employees, has been consistently and even-handedly applied to employees of both sexes; and is in fact the basis for the compensation differential.
Factors Other Than Sex Defense
The EPA permits a compensation differential based on a factor other than sex. While this defense encompasses a wide array of possible factors, the employer must establish that a gender-neutral factor, applied consistently, in fact explains the compensation disparity. An employer asserting a “factor other than sex” defense also must show that the factor is related to job requirements or otherwise is beneficial to the employer’s business. Moreover, the factor must be used reasonably in light of the employer’s stated business purpose as well as its other practices.
Some potential justifications that employers have asserted as factors other than sex, include education, experience, training, and ability, participation in a training program, shift differential, and job classification systems.