Equal Pay & Compensation Discrimination
Equal Pay for Equal Work is Not Political, It’s the Law
While the law has long prohibited discrimination in compensation based on gender, race, or national origin, little progress has been made in realizing the promise of equal pay for equal work. Nationally, women still earn 80% of what men earn for the same work. When these numbers are broken down by race and national origin, the picture is even more bleak. African-American men earn only 75% of what white men earn for the same work, and African-American and Hispanic women earn even less.
Employers make all manner of excuses to explain their unequal pay practices. Chief among these is prior salary history. This factor serves to permanently entrench past pay discrimination into present and future wages. For this reason, many courts now prohibit employers from relying on such factors to explain gender and racial pay gaps. Many states even prohibit employers from asking about prior pay history to prevent such discrimination from affecting future wages.
Pay differences must be based on real job-related factors. Herrmann & Murphy looks past the usual excuses based on pay history, previous experience, college-degree requirements, and market factors. Many times past experience or a college degree are not actually needed to do the job. Employers’ blind use of these requirements keep people out of good paying jobs for no good reason at all. Like pay history, the “market factor” excuse is another way of saying that the employer is allowed to discriminate against women and minorities because everyone else is doing it, too.
Equal pay cases are made more difficult by employer rules prohibiting employees from discussing their compensation with others. Such rules are usually illegal and employees should not be inhibited from banding together to bring change to discriminatory pay systems.
If you believe you are the victim of pay discrimination, you should reach out for a consultation today.
There are four federal laws used to enforce Congress’s promise of equal pay for equal work: The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964 (Title VII), The Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA).
Equal Pay Act
The Equal Pay Act requires that men and women be given equal pay for equal work in the same establishment. The jobs must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. Employees can recover the pay differential, plus liquidated damages, costs, and attorneys’ fees for violations of the Equal Pay Act.
Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. These are known as “affirmative defenses” and it is the employer’s burden to prove that they apply.
Title VII, ADEA, ADA
Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities ACT (ADA) prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement that the claimant’s job be substantially equal to that of a higher paid person outside the claimant’s protected class, nor do these statutes require the claimant to work in the same establishment as a comparator. Unlike the EPA, however, employees proceeding under the protection of these laws must first file their claim with the Equal Employment Opportunity Commission within 180 days of the discriminatory act.
Unfortunately, the EEOC is far more likely to harm your case than to help your cause. Therefore, we strongly recommend you reach out for a consult before going to the EEOC if you believe you have been the victim of unlawful discrimination or retaliation. No matter what, though, you must comply with the 180-day deadline. Therefore, you should file with the EEOC immediately if it has been five months since the adverse employment action occurred.
Lilly Ledbetter Fair Pay Act
The Lilly Ledbetter Fair Pay Act overturned the Supreme Court and made it so that each pay check amounts to a fresh violation of the law. Without this law, an employee would have to have brought a pay discrimination claim within the first 180 days the employee was paid the discriminatorily low wage. With this law, employees can bring a claim within 180 days of their last paycheck. Still, the earlier a claim is made, the more damages an employee stands to collect and the sooner an illegal practice can be remedied.
Reach out for a consultation today.