Eliminating the Gender Pay Gap

Enforcement

The Equal Pay Act is enforced by the Equal Employment Opportunity Commission (EEOC). In addition, in the early 1990s, under Executive Order 112246, the Office of Federal Contract Compliance Programs began successful resolution of wage discrimination cases involving federal contractors - however, this Executive Order has been revoked.

Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The EEOC enforces the following laws:

• Title VII of the Civil Rights Act of 1964 (Title VII)
• The Pregnancy Discrimination Act
• The Equal Pay Act of 1963 (EPA)
• The Age Discrimination in Employment Act of 1967 (ADEA)
• Title I and V of the Americans with Disabilities Act of 1990 (ADA)
• Sections 102 and 103 of the Civil Rights Act of 1991
• Sections 501 and 505 of the Rehabilitation Act of 1973
• The Genetic Information Nondiscrimination Act of 2008 (GINA)

The laws forbid discrimination in every aspect of employment.

The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees aged 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age.

Job Assignments and Promotions

It is illegal for an employer to make decisions about job assignments and promotions based on an employee's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers.

An employer may not base assignment and promotion decisions on stereotypes and assumptions about a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

If an employer requires employees to take a test before making decisions about assignments or promotions, the test may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or individuals with disabilities unless the employer can show that the test is necessary and related to the job. In addition, the employer may not use a test that excludes employees aged 40 or older if the test is not based on a reasonable factor other than age.

Pay and Benefits

It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the bases of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. Employee benefits include sick and vacation leave, insurance, access to overtime as well as overtime pay, and retirement programs. For example, an employer many not pay Hispanic workers less than African-American workers because of their national origin, and men and women in the same workplace must be given equal pay for equal work.

In some situations, an employer may be allowed to reduce some employee benefits for older workers, but only if the cost of providing the reduced benefits is the same as the cost of providing benefits to younger workers.

An employee may submit a charge of pay discrimination to the EEOC and/or state equal employment agencies. Following a lawsuit, the employee may receive lost wages, plus court costs.

An organization cannot lower wages of either gender to rectify unequal pay.

Recent Legislation

Equal pay advocates called for stronger legislation to expand penalties for employers who pay women less than men.

Lilly Ledbetter Fair Pay Act Of 2009

President Barack Obama signed his first bill, the Lilly Ledbetter Fair Pay Act, into law on January 29, 2009. The purpose of this act is to amend Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice and to amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of gender, and for other purposes.

The amendment has three main points:

1. Restore a reasonable time limit for filing pay discrimination claims
2. Retain current limits on the amount employers owe.
3. Restore Congressional intent.

Most important to employers is the law now permits an employee to bring a claim of discrimination 180 days from not only a discriminatory compensation decision, but also any effects of that decision. Even if the discriminatory action (i.e., an evaluation) happened 20 years ago, an employee can bring a claim based on a current paycheck reflecting a lesser salary than male counterparts, which the employee can argue is the result of the 20-year old decision.

The Paycheck Fairness Act

Reintroduced in January 2019, the bill has not yet been passed by the United States Senate. The Act would:

permit wage comparisons between employees who perform substantially equal jobs at any of the employer’s places of business located in the same country.

protect employees from retaliation for challenging discriminatory gender-based pay practices and for discovery and disclosure of salary information.

require that a pay disparity defense must be based on a bona fide, job-related factor such as education, training, or experience that is considered to be a business necessity, and that any factor offered as a defense does not qualify if the employer refuses to adopt an existing alternative business practice that would serve the same business purpose without producing a pay differential.

strengthen the role of the Department of Labor and the Equal Employment Opportunity Commission in combating gender-based pay discrimination.

allow employees who bring a gender-based pay discrimination challenge to recover both compensatory and punitive damages.

automatically make class members part of a gender-based pay class action unless they specifically choose to opt out. The intent of this provision is to combat systemic gender-based wage discrimination.

California Fair Pay Act

California currently leads the way on equal pay via the 2016 California Fair Pay Act, which took effect January 1, 2016, and strengthens the state's existing equal pay laws by eliminating loopholes that prevent effective enforcement and by empowering employees to discuss their pay without fear of retaliation. The California Fair Pay Act:

1. expands the equal pay standard requiring men and women to receive equal pay for “substantially similar work” (not the “same work” as previously required), regardless of whether they work at the same physical location
2. modifies the business justification defense that may be asserted by employers to accept an otherwise prohibited pay discrepancy from the equal pay requirement based on a recognized justification (e.g., a seniority, merit, or quality/quantity-based pay system) by requiring the employer to establish that the business justification (i) accounts for the entire wage discrepancy and (ii) iss reasonably relied upon by the employer
3. prohibits employers from precluding employees from discussing their wages, discussing the wages of others, inquiring about others' wages, or aiding or encouraging any other employee to exercise their rights under the Act
4. increases employers' record keeping obligations from two to three years