A federal law, the Equal Pay Act (29 U.S.C. § 206), requires employers to pay all employees equally for equal work, regardless of their gender. It was passed in 1963 as an amendment to the Fair Labor Standards Act.

While the Act technically protects both women and men from gender discrimination in pay rates, it was passed to help rectify the problems faced by women workers because of sex discrimination in employment. And in practice, this law has almost always been applied to situations where women are being paid less than men for doing similar jobs.

The wage gap has narrowed slowly since 1980, when women's earnings were only 60% of men's; the 1998 figure has women earning about 76% as much as working men. But the Equal Pay Act likely has little to do with it. The law's biggest weakness is that it is strictly applied only when men and women are doing the same work. Since women have historically been banned from many types of work and had only limited entree to managerial positions, the Equal Pay Act in reality affects very few women.

To successfully raise a claim under the Equal Pay Act, you must show that two employees, one male and one female:

  • are working in the same place
  • are doing equal work, and
  • are receiving unequal pay.

You must also show that the employees in those jobs received unequal pay because of their genders.

Who Is Covered

The Equal Pay Act applies to all employees covered by the Fair Labor Standards Act, which means virtually all employees are covered. But in addition, the Equal Pay Act covers professional employees, executives and managers--including administrators and teachers in elementary and secondary schools.

Determining Equal Work

Jobs do not have to be identical for the courts to consider them equal. In general, the courts have ruled that two jobs are equal for the purposes of the Equal Pay Act when both require equal levels of skill, effort and responsibility and are performed under similar conditions.

There is a lot of room for interpretation here, of course. But the general rule is that if there are only small differences in the skill, effort or responsibility required, two jobs should still be regarded as equal. The focus is on the duties actually performed. Job titles, classifications and descriptions may weigh in to the determination, but are not all that is considered.

The biggest problems arise where two jobs are basically the same, but one includes a few extra duties. It is perfectly legal to award higher pay for the extra duties, but some courts have looked askance at workplaces in which the higher-paying jobs with extra duties are consistently reserved for workers of one gender.

EQUAL PAY V. COMPARABLE WORTH

The Equal Pay Act covers only situations where men and women are performing jobs that require equal skill, effort and responsibility and are performed under similar circumstances. Often, however, men and women are doing different jobs at different payrates, despite the fact that the value of their work is equal. Disputes over this type situation are typically lumped under the term comparable worth. When Congress passed the Equal Pay Act, legislators squirmed to choose their words carefully. Representative Goodell (R-NY), one of the Act's sponsors, explained: " We went from 'comparable' to 'equal,' meaning that the jobs should be virtually identical--that is, that they would be very much alike or closely related to each other."

Determining Equal Pay

In general, pay systems that result in employees of one gender being paid less than the other gender for doing equal work are allowed under the Equal Pay Act if the pay system is actually based on a factor other than gender, such as a merit or seniority system.

Example: In 1970, the Ace Widget Company was founded and initially hired 50 male widgetmakers. Many of those men are still working there. Since 1990, the company has expanded and hired 50 more widgetmakers, half of them female. All of the widgetmakers at Ace are doing equal work, but because the company awards raises systematically based on seniority or length of employment, many of the older male workers earn substantially more per hour than their female co-workers. Nevertheless, the pay system at Ace Widget does not violate the Equal Pay Act because its pay differences between genders doing equal work are based on a factor other than gender.

How to Take Action

The Equal Pay Act was passed one year before Title VII of the Civil Rights Act. Both laws prohibit wage discrimination based on gender, but Title VII goes beyond ensuring equal pay for equal work, as it also bars discrimination in hiring, firing and promotions. In addition, Title VII broadly prohibits other forms of discrimination, including that based on race, color, religion and national origin.

Example: Suzanne works as a reservations agent for an airline, answering calls on the company's toll-free telephone number. About half of the other reservations agents in her office are men, who are typically paid $1 per hour more than Suzanne and the other female agents. What's more, the company has established a dress code for female reservations agents, but not for the male agents.
If Suzanne decides to file a discrimination complaint against her employer, the Equal Pay Act would apply to the pay difference between females and males. Title VII would apply to both the pay difference and the fact that only the female employees in her office are held to a dress code.

In cases where both Title VII and the Equal Pay Act apply, the Equal Pay Act offers two potential advantages:

  • You can file a lawsuit under the Equal Pay Act without first filing a complaint with the EEOC.
  • Unlike Title VII, the Equal Pay Act does not require proof that the employer acted intentionally when discriminating. That can make an Equal Pay Act case much easier to win in court.
Concerned About Equal Pay--For Good Reason
According to a recent nationwide survey by the AFL-CIO, money is foremost in the minds of America's working women. Asked to cite their top workplace concerns, about 94% of the women polled rated equal pay for equal work; 33% noted child care; 78% cited sexual harassment; 72% mentioned downsizing.

The math supports the mindset. On average, according to the Institute for Women's Policy Research, women earn $24,000 annually--much less than men's $32,000 yearly average. If these figures hold, today's 25 year-old woman who puts in 40 years of work before retiring will earn about a half million fewer dollars than a male worker at the same age and stage.

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