A. Equal Pay

Wage disparities unfortunately still exist in American society. It has been reported that the typical American working woman is paid 71 cents for each $1 earned by a man. The largest gap is with black and Hispanic women, who, according to U.S. Census figures, earn 64.2 percent and 53.4 percent, respectively, of what men do.

The federal Equal Pay Act (EPA) prohibits covered employers with two or more employees from paying unequal wages to male and female employees who perform substantially the same jobs. For example, a major university was ordered to pay 117 women an award of $1.3 million after a federal court judge ruled that the university paid less money to women on the faculty than to men in comparable posts.

While the EPA and the Civil Rights Act of 1964 both prohibit sex discrimination in the workplace, the EPA applies only to wage inequities between the sexes. Under the Equal Pay Act, employers are barred from paying women less than men if they are working on jobs that require equal skill, effort, and responsibility, and if those jobs are performed under similar working conditions. This includes.findlaw everyone from hourly workers to salaried employees engaged in executive, administrative, and professional functions, such as teachers. The courts have held that the jobs need not be identical, only "substantially equal." Further, an employer may not retaliate against a female worker, such as by firing her, because an EPA charge was initiated.

Fringe benefits are included in the definition of wages under the law. Thus, employers may not differentiate with items such as bonuses, expense accounts, profit-sharing plans, or leave benefits. Under EPA, it is not a defense to a charge of illegality that the costs of such benefits are greater with respect to women than to men since the law is designed to ensure that women do not receive lower salaries and benefits than their male counterparts.

There are loopholes in the law however. Employers may pay different wages if there is a bona fide preestablished seniority system, a merit system, or a system that measures earnings by quantity or quality of production. Differential pay is also permitted when the jobs are different or are based on a legitimate factor other than sex.

Determining if a job is different is not always clear-cut. A major problem arises when two jobs are similar but one includes.findlaw extra duties. Although it is legal to give higher pay for the job with more responsibilities, a judge will scrutinize if the greater-paying jobs are given only to males at a particular company. This is often the case and may be illegal depending on the facts.

A female worker may seek damages in federal or state court or through the Equal Employment Opportunity Commission (EEOC), and may obtain a trial by jury when asserting an EPA violation. Successful litigants are entitled to recover retroactive back pay, liquidated damages, reasonable attorney fees, and costs. If willful violations (defined as reckless disregard for the law) are found, double back pay may be awarded. Employers are obligated to maintain and save records documenting wages and benefits paid to all employees. Once a complainant shows that she is working in the same place, is doing equal work under similar working conditions, and is paid less than employees of the opposite sex, the burden shifts to the employer to show an affirmative defense that any wage differential is justified by a permitted exception. Practices that perpetrate past sexual discrimination are not accepted as valid affirmative defenses.

If a violation is present, you can sue the employer privately instead of filing a charge of sex discrimination with the EEOC. It is not necessary to prove motive or intent in order to recover. However, the EPA does not protect women from employers who engage in other forms of sex discrimination, such as failing to promote you or firing you. Any other form of sex discrimination must be filed under Title VII or various state discrimination laws.

Counsel Comments:To avoid charges of EPA violations, employers are instructed to prepare precise job descriptions that demonstrate different duties and job responsibilities for different pay. When offering jobs with different salaries and benefits, companies are instructed to assign those higher-paying jobs on the basis of factors such as technical skills, additional education, work experience, and knowledge required, rather than sex.

Tip:If you believe that your company is exceeding predetermined salary ranges by offering males who are performing essentially the same job higher salaries, speak to an employment lawyer. This is a violation of EPA even if the reason is to attract minority applicants. For example, in one case, a university wanted to hire a black male assistant professor for a position with a salary ceiling of $28,000 per year. When the applicant asked for more, the university offered him the job at $40,000 per annum. A female white assistant professor who was also hired at the same time at an annual salary of $28,000 filed a lawsuit.

The university argued that the black professor was paid a higher salary because it needed to hire minorities as part of its affirmative action program. The court ruled that the university violated the law. It found that the two professors had comparable skills and were hired at the same time to do the same job. Offering the minority professor a salary that exceeded the established salary range violated the EPA, with no exceptions.

Remember, being denied equal pay because you are married, have children, or are a victim of gender-based stereotypes violates the law.