September 27, 2021

Volume XI, Number 270

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September 27, 2021

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Equal Pay Day and the continuing importance of the Equal Pay Act

Equal Pay Day is the date (March 24) that symbolizes how far into the year women must work to earn what men earned in 2020. Progress has been made in narrowing the gap between what men and women earn but it is still far too wide: women on average still earn about 17% less than men.

And women of color are particularly hard hit by the wage gap. The pay gap for Black women is 39% and for Hispanic women the pay gap is 47%. To put this into further context, while today is All Women’s Equal Pay Day, Black Women’s Equal Pay Day is on August 3, Native Women’s Equal Pay Day is on September 8, and Latina Women’s Equal Pay Day is not until October 21.

What Is The Equal Pay Act (EPA)?

The EPA was passed by Congress in 1963 to prohibit employers from paying higher wages to employees in substantially equal jobs on the basis of sex. Notably, an employee does not have to prove that the employer intended to discriminate against them.

The EPA applies to different kinds of compensation, including salary, overtime, bonus, stock options, vacation pay, and benefits.

How Do You Win An EPA Case?

To establish the first step (called a prima facie case) in winning an EPA case, the plaintiff employee has to show:

  1. she was doing substantially equal work on the job, the performance of which required substantially equal skill, effort, and responsibility as the jobs held by members of the opposite sex;

  2. the job was performed under similar working conditions; and

  3. she was paid at a lower wage than members of the opposite sex.

Once the plaintiff employee makes this showing, the employer has the burden of demonstrating that of one of the four affirmative defenses identified in the EPA applies:

  1. a bona fide 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 factor other than sex.

29 U.S.C. 206(d)(1).

What Damages Are Available Under The EPA?

If the employee proves they were paid an unequal amount, the court may award the following types of remedies:

  • Back pay—the difference between what should have been paid and what the company actually paid ; and/or

  • Attorney’s fees and litigation expenses

Note that an employee can also pursue their equal pay claim under Title VII of the 1964 Civil Rights Act. Under Title VII, the employee can receive additional relief, including emotional distress and punitive damages if they win their case.

What Should I Do If I Believe I’m Being Paid Less Because Of My Gender?

It’s prudent to speak with an experienced employment lawyer to discuss your options, which may include filing a written complaint with the appropriate internal supervisor about your concerns. Follow your company’s policy for submitting internal complaints.

Also, you may want to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Their website has helpful information on how to file the complaint.

What are the deadlines?

The time limit for filing a case in court under the EPA is within two years of the discriminatory pay practice (or three years if the violation is willful). The EPA does not require that a plaintiff file a charge of discrimination with the EEOC before commencing a lawsuit in court.

If, however, a plaintiff chooses to pursue their pay discrimination claims under Title VII, then they must file an EEOC charge of discrimination first. A Title VII pay discrimination charge must be filed with the EEOC within 180 or 300 days (depending on what state you live in) of the discriminatory pay practice.

Note that if you are a federal government employee or a state or local (city, county) government employee, different complaint filing procedures may apply.

You are allowed to file an EEOC Charge of Discrimination for an EPA claim as well, but filing a charge with the EEOC does not extend the two-year time frame for filing an EPA lawsuit.

Key Takeaways

To prove an EPA case requires more than pointing to the general wage gap that exists between men and women in this country, or even within a particular industry or company. Instead, a female employee will need to point to evidence showing that, as compared to a man in the same company making more money, they have:

  • The same/similar level of skill and experience doing this type of job;

  • To give a generally equal amount of effort (mental or physical) to do the job;

  • Similar job duties and responsibilities; and

  • Job performance that is generally as good.

© 2021 Zuckerman LawNational Law Review, Volume XI, Number 88
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About this Author

Eric Bachman, Discrimination Attorney, Zuckerman Law Firm
Of Counsel

Eric Bachman is Chair of the Discrimination and Retaliation practices at Zuckerman Law and has served in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division.  Bachman’s wins include a $100 million settlement in a disparate impact Title VII class action, a record-setting Whistleblower Protection Act settlement at OSC, and a $16 million class action settlement against a major grocery chain.  Bachman holds extensive litigation experience, including trials in federal and state courts, and has also set important...

202- 256-6931
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