iPledging to “crack down” on violations of equal pay laws, in 2010, President Barack Obama established the National Equal Pay Task Force, comprising representatives of the EEOC, Department of Justice, Department of Labor, and the Office of Personnel Management. The goals of the task force include enhancing federal interagency collaboration to enforce federal equal pay laws.
In concert with the goals of the National Equal Pay Task Force, the SEP prioritizes the enforcement of equal pay laws by targeting “compensation systems and practices that discriminate based on gender.” This enforcement priority furthers the stated goals of President Obama and his administration to bridge what has been termed the “gender pay gap.”
One of the tools being used by the EEOC to effect this enforcement priority is the EPA, which is part of the Fair Labor Standards Act (“FLSA”). The EPA gets less publicity than the Civil Rights Act of 1964, despite being signed into law one year earlier. But, especially given the attention to equal pay that the EEOC, President Obama, and the national task force have given recently, employers should be aware of the protections that it affords employees.
The EPA requires employers to pay men and women equal wages for equal work. To establish a violation of the EPA, a plaintiff must show that a company paid men and women in the same establishment different wages for jobs that require substantially equal skill, effort, and responsibility, and which are performed under similar working conditions. Employers, however, may justify wage disparities by proving that any wage differential is based on seniority, merit, quantity or quality of production, or a factor other than sex. These are affirmative defenses, meaning the burden of proof rests on the employer, rather than the employee.
Given the EEOC’s stated pursuit of potential pay discrimination, employers must be particularly sensitive to the differences in the procedural administration and remedies available under the EPA. The current SEP calls for the EEOC to pursue alleged equal pay violations through “directed investigations.” The EEOC may launch a directed investigation on its own initiative without receiving an individual charge of discrimination. Because they are not focused on specific allegations by an individual or handful of individuals, these investigations may be wide-ranging and, thus, especially burdensome on employers.
In addition, unlike with Title VII claims, there is no requirement that a charge of discrimination alleging EPA violations has to be brought within 180 days (or 300 days, depending on the jurisdiction) or that administrative remedies be exhausted before a court action is filed. Under the EPA, plaintiffs have two years (three years if the violation was “willful”) to file a lawsuit. Thus, an employer may still face a pay discrimination lawsuit long after the time expires for an individual to file a charge under Title VII.
Further, violations of the EPA can be costly. To remedy any gender-based pay disparity, an employer may not reduce the wages of other employees. In other words, the employer must correct a pay disparity by raising the wages of the female employee rather than decreasing the wages of her comparators. In addition, the EPA contains a 100 percent liquidated damages provision, allowing a plaintiff to recover double damages.
A plaintiff also may recover damages under both the EPA and Title VII for the same unlawful conduct. Where the jurisdictional prerequisites of both statutes have been satisfied, a violation of the EPA is also a violation of Title VII. Thus, although a plaintiff cannot receive duplicative relief for the same wrong, relief is computed so that a plaintiff receives the highest benefits under the statutes. Thus, a prevailing plaintiff can receive liquidated damages under the EPA and compensatory and punitive damages under Title VII.
Because of the burden placed on employers in defending EPA claims and the risk of costly remedies for any violation, employers should consider conducting periodic compensation audits of their staff. Employers may combine this exercise with an FLSA audit. Any pay differences between men and women in the same job should be critically assessed to ensure that any such disparities are the product of seniority, merit, quantity or quality of production, or a factor other than sex. Any such audit should be managed by legal counsel so that the audit and related communications are privileged.
