Equal Pay
• Requiring equal pay for equal work has been a long, difficult battle
• Attempts were made as early as the 1870’s and specific laws failed in
Congress from 1945-1962 (mainly due to the use of the word “comparable”)
• The Equal Pay Act (EPA), which was passed the year before Title VII,
makes it illegal to pay men and women different wages for jobs of equal
work
~ Equal Pay Act (1963) ~
No employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to
employees of the opposite sex in such establishment for equal work on jobs
the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions, except where such
payment is made pursuant to
(i) a seniority system;
(ii) a merit system;
The 4 Affirmative
Defenses
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex (FOS):
Provided, That an employer who is paying a wage rate differential in violation of
this subsection shall not, in order to comply with the provisions of this
subsection, reduce the wage rate of any employee.
~ Some EPA Basics ~
• Only deals with sex differences in pay rates
• No minimum requirement of 15 employees (only an opposite-sex
comparator is needed)
• No proof of intent is needed
• Have 3 years to file a claim of a willful violation (rather than 2)
• Some public institutions added in 1966 with others included in
1974
EPA Process
Step 1
Plaintiffs must show that jobs are equal regarding skill,
effort, responsibility, and work conditions
Step 2
Defendants can use any of the four affirmative statutory
defenses to prove that pay differences are due to either
seniority, merit, quantity or quality of work, or any
factor other than sex (FOS)
“if there is any other factor not based on sex upon which a
differential is based, then no violation of the law can be found”
(109 Cong. Rec. 9203, 1963).
Step 3
Plaintiffs offer proof that the defendant’s reasons are a
pretext for pay differences based on sex
The Bennett Amendment
• Stated purpose of the Bennett Amendment was to resolve any
conflicts between Title VII and the EPA
• Makes any EPA wage violation virtually an automatic Title VII
violation
• Allows the plaintiff to file both EPA and Title VII claims for a
single violation so long as they do not receive duplicative relief, but
instead the maximum amount of relief allowed under both claims
--- The Bennett Amendment:
It shall not be an unlawful employment practice under this title for any
employer to differentiate upon the basis of sex in determining the
amount of wages or compensation paid or to be paid to employees of
such employer if such differentiation is authorized by the provisions
of Section 6(d) of the Fair Labor Standards Act of 1938, as
However --• Courts often have found that a EPA victory will not
automatically result in a Title VII victory
• Courts have assumed this position for two reasons --1) Prima facie burdens in the EPA establish only that the
wage disparities cannot be legally explained
2) Title VII requires proof of illegal motive (intent). A
showing of an EPA violation does not provide an indication
of intent as required under Title VII
~ Equal Work Requirement ~
Cases Where Defendants Lost (Jobs viewed as equal)
• Corning Glass Works v. Brennan (1974)
– Corning claimed working conditions were
different between night and day
– “Red Circle” Effect (only legal if sex-neutral)
• Incumbent male workers kept higher wages
• Male and female new hires received equal but lower
wages
– The Supreme Court ruled that the “hazards” and
“surroundings” at Corning were not substantially
different across shifts
– Market Forces struck down as an FOS defense
– Thompson v. Sawyer (1982)
• Male “bookbinders” paid more than female “bindery workers”
• Use of different equipment does not make the jobs
Performance of jobs on different machines or equipment would not
necessarily result in a determination that the work so performed is
unequal within the meaning of the statute if the equal pay provisions
otherwise apply
– Laffey v. Northwest Airlines (1984)
• Male “pursers” and female “stewardesses” performed equal work for
unequal pay
• Airline lost under four different defences:
1) BFSS,
2) fewer benefits for females who might become pregnant,
3) heavy penalties would destroy the airline, and
4) a comparable worth claim that “stewardesses” were less valuable to the
company
~ FOS ~
City of Los Angeles Department of Water and Power v. Manhart (1978)
Females paid more into their retirement plan than males (they live longer, so they
cost the pension fund more money)
Water Department defense: Longevity is a FOS
The Department argues that the different contributions exacted from men and
women were based on the factor of longevity rather than sex. It is plain, however,
that any individual's life expectancy is based on a number of factors, of which sex
is only one. The record contains no evidence that any factor other than the
employee's sex was taken into account in calculating the 14.84% differential
between the respective contributions by men and women.
We agree with Judge Duniway's observation that one cannot "say that an
actuarial distinction based entirely on sex is `based on any other factor other than
sex.' ….. Sex is exactly what it is based on."
~ The Establishment ~
In most cases, a distinct, physical location
But, key criteria is centralized control over administrative affairs
Brennan v. Goose Creek (1975)
• Female janitors were paid less than male janitors
• Different janitors worked at different elementary schools.
• School District defense: Each elementary school is a “separate establishment”
• Circuit Court: Ruled against the school district.
The record reveals that the central administration of the school district (not the principals of
the schools) hired the janitors, determined their wages, assigned them to the school building in
which they were to work, and sometimes switched their assignments from one building to another.
Finally, the record discloses that the work schedule and the janitors' daily duties controlled to a large extent by the central administrators - do not differ from building to
building.
Comparable Worth Claims in Title VII
• Equal work under EPA is a dichotomy: two jobs either are or
are not substantially equal
– Usually based on job analysis data
• Comparable Worth represents a continuum of value to the
organization
– Usually based on job evaluation and internal value to
company
– For example, A job assigned a value of 100 points is valued
at $10/hr
• Any other job valued at 100 points should also be worth
$10/hr
• External worth is based on market forces (outside the
organization)
– Comparable worth proponents argue female dominated jobs
are under-valued because of past social injustices
Comparable Worth (cont.)
• Lemons v. Denver (1980)―interpreted Bennett Amendment as
allowing equal work claims in both EPA and Title VII
• County of Washington v. Gunther (1981)―Supreme Court ruled
Bennett Amendment does not prohibit Title VII comparable
worth claims
– EPA is limited to wage discrimination whereas Title VII is
not
– Did not validate comparable worth; did permit plaintiffs
to try to make a prima facie claim via Title VII
• Thus far, plaintiffs have lost every comparable worth case
~Comparable Worth Example Opinion ~
Alexander v. Chattahoochee Valley Community College
• Alexander’s claimed that her job of Admissions Clerk was paid
less than two director jobs (Auxiliary Services & Institutional
Advancement
Alexander’s argument that her job requires a substantially
similar amount of skill, effort, and responsibility is essentially a
“comparable worth” claim, or a claim that her job has the same
“intrinsic worth or difficulty” … even though it involves
doing different work … Whatever its merits as a theory may
be, courts have held that comparable worth claims are not
cognizable under either Equal Pay Act or Title VII.
Use of Statistics in Comparable Worth Claims
From AFSCME v Washington (1985) … job evaluation studies and
comparable worth statistics alone are insufficient to establish the requisite
inference of discriminatory motive critical to the disparate treatment theory
…
From American Nurses v. Illinois (1986; referencing AFSCME):
The critical thing lacking in AFSCME was evidence that the state decided not
to raise the wages of particular workers because most of those workers were
female.
~ Role of Past Salary and Market Forces ~
• Market forces argument as a FOS generally found to violate the EPA
• Less agreement on the use of prior salary (if prior salary is the only
differentiating factor, then FOS defense generally not legitimate)
-- Years of experience and previous salary are the strongest predictors of
starting salary, and starting salary is the greatest predictor of current salary
Mickey Silberman, A New Day for Pay Discrimination Enforcement, Industry
Liaison Group Conference 2011
Kouba v. Allstate (1982):
To determine minimum salary, company used ability, education,
experience, and prior salary (minimum salary was the only money
paid until the training period was over (8-13 weeks)
On average, female agents were paid less than their male counterparts
Title VII suit filed but company defended prior salary as a FOS
From Kouba
The Equal Pay Act concerns business practices. It would be nonsensical to
sanction the use of a factor that rests on some consideration unrelated to
business. An employer thus cannot use a factor which causes a wage
differential between male and female employees absent an acceptable
business reason. Conversely, a factor used to effectuate some business policy
is not prohibited simply because a wage differential results.
>>> Allstate used prior salary as a motivating force and to predict performance;
that salary corresponds roughly to an employee's ability>>>
Relevant considerations in evaluating the reasonableness of this practice include
1) The use of other available predictors
2) Less use of prior salary after on-the-job performance is known
3) Whether the employer relies more heavily on salary when the prior job
resembles the job of sales agent
~ Paycheck Fairness Act* ~
Factor Other Than Sex = a "bona fide factor other than sex" (BFFOS)
• Not based upon or derived from a sex-based differential in compensation
• Job-related with respect to the position in question
• Consistent with business necessity
* PFA failed by 2 votes in 2010
OFCCP and Pay Discrimination
• Secretary of Labor Hilda Solis’s goal of 20-40% of all OFCCP settlements to
be focused on compensation.
• 2008: No pay discrimination settlements
• 2009: 2 pay discrimination settlements
• 2010: 10 settlements involving compensation.
Proposed revision to desk audit screening device (past process resulted in few
in-depth investigations of pay discrimination)
This would look to see if there is a 2% or $2,000 difference in any pay grouping.
Mickey Silberman and colleagues did a study of over 100 clients and found that
100% of them would fail the new screen
Ledbetter v. Goodyear (2007)
Key Question: What is an unlawful employment and when does of occur?
Continuing violation?
Bazemore v. Friday (1986; race discrimination case): “ ... each week’s paycheck
that delivers less to a black than to a similarly situated white is a wrong
actionable under Title VII” ... “because they discriminate each time anew
each time they issue ...”
Hostile work environment claims (Morgan v. National Railroad Passenger
Corp.; repeated conduct)
“Although the unlawful conduct began in the past, a charge may be filed at a
later date and still encompass the whole.”
Lily Ledbetter Paycheck Fairness Act (2009)
An illegal employment act occurs when:
a) it is implemented,
b) an individual becomes subject to it, or
c)one is impacted by its application (e.g., each time a paycheck
is issued resulting from pay discrimination)