Congress enacted the Equal Pay Act (EPA) in 1963, signed into law by President John F. Kennedy., as an amendment to the Fair Labor Standards Act to remedy disparities in pay arising from traditional concepts of gender. Congress extended the statute to the federal government in 1974. 29 U.S.C. § 203(e)(2)(2006).

Under the Equal Pay Act:

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; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any factor other than sex.

29 U.S.C. § 206(d)(1).

To establish a prima facie case under the Equal Pay Act, a plaintiff must show that (1) an employer pays different wages to employees of the opposite sex, (2) for equal work requiring equal skill, effort, and responsibility, (3) performed under similar working conditions. The plaintiff need not show that the wage disparity results from gender bias or discriminatory practice on the part of the defendant. Furthermore, the similar treatment of other employees of a different gender cannot defeat a plaintiff’ prima facie showing that she received different pay than a similarly-situated employee of the opposite sex.

Once the plaintiff has met this initial burden, the statute presumes discrimination and requires the defendant to proffer an affirmative defense successfully based on one of the statute’s four exceptions. The employer must prove that the gender-neutral factor it identified is the factor causing the wage difference in question. A plaintiff may rebut the employer’s affirmative defense with evidence that the defendant’s proffered reasons for the wage disparity are a mere pretext for sex discrimination.

Additional indicators of pretext include:

  • discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint
  • comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy
  • deviations from standard procedures without explanation or justification
  • inadequately explained inconsistencies in the evidentiary record

If the Court finds the factor to be a mere pretext, then the affirmative defense fails.

Equal work under the Equal Pay Act does not mean “identical” work. The prevailing standard is one of “substantial equality” in the skill, effort, responsibility, and working conditions required. Insubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. Differences in subject matter do not make jobs unequal if the jobs involve the same tasks.

In conducting this inquiry, the Court must focus on the primary duties of each job, not those which are incidental. Furthermore, the Court may only consider the skills actually required by the jobs, not the ability of the employees holding those positions. It is the job as a whole, not just selected aspects of it that must form the basis for comparison. Although job titles hold some weight in assessing comparative responsibility, the controlling factor is job content.

The statute used to be limited to a two-year window from when the employee filed knew of the pay disparity, which means employers could hide the unequal pay for years and walk away unscathed. In 2009, President Obama signed into law the Lilly Ledbetter Act, which removes the limitations and prevents employers from concealing their discrimination.

The EEOC, which investigates claims of discrimination and unequal pay, published this information about the Equal Pay Act: https://www.eeoc.gov/laws/statutes/epa.cfm.

David Scher, a Founding Partner of Hoyer Law Group, litigated and won an Equal Pay Action claim awarding over $460,000 to a senior executive of the National Transportation Safety Board. Plaintiff Marjorie Murtagh Cook complained that her employer paid her less than male co-workers with similar qualifications, and who performed similar work under similar circumstances. The United States Court of Federal Claims awarded Ms. Cooke over $460,000 after finding that her employer, the National Transportation Safety Board, violated the Equal Pay Act. The Court awarded Ms. Cooke lost back pay and lost retirement benefits and also extended her damages back three years and doubled the award. You can read the entire opinion here: http://www.uscfc.uscourts.gov/sites/default/files/opinions/WHEELER.COOKE122208.pdf