Eliminating the Gender Pay Gap

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 need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Specifically, the Equal Pay Act provides that 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. Each of these factors is summarized below:

• Skill
  Measured by factors such as the experience, ability, education, and training required to perform the job. The issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the Equal Pay Act even if one of the job holders has a master's degree in physics, since that degree would not be required for the job.
• Effort
  The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as they complete the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.
• Responsibility
  The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers' personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential.
• Working Conditions
  This encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation; and (2) hazards.
• Establishment
  The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment.

Define "equal"

Equal in the law means the same as or, more accurately, substantially similar. That is, the work activities performed by male and female workers must be the same or almost the same. Where there are some activities carried out by males occasionally but not regularly, this is not a basis for a differential in pay. Further, it is the actual activities and not the formal written ones that are considered. This means that the job descriptions of the organization need to be kept current and reflect the activities of the employees in those jobs. The appropriate technique for evaluating equal pay is taught in DLC Course 33: Job Analysis and Job Descriptions. We will go into this process later in the course.

Court interpretation

The determination of whether two jobs are substantially equal is based upon the four factors mentioned above in the Equal Pay Act. Guidelines for interpreting the law have evolved from court cases that have concluded that:

• The skill, effort, or responsibility involved in a job must be substantially greater than in another job for the two jobs to not be equal.
• The skill, effort, or responsibility that is substantially greater must occupy a significant amount of the job time compared to all the employees in that job classification.
• The differential in skill, effort, and responsibility should have a value commensurate with the pay differential that is in question.
• A further indication of dissimilar work is different recruiting practices or training for the two jobs, provided that these practices are bona fide.

Court interpretations of the Equal Pay Act have determined that pay differentials are permitted when they are based on:

• seniority
• merit
• an incentive system that pays based on the quantity or quality of production
• shift differentials
• other factors related to job performance or business operations

These are known as "affirmative defenses," and it is the employer's burden to prove that they apply.

In correcting a pay differential, no employee pay may be reduced. Instead, the pay of the lower paid employees must be increased.