Requiring equal pay for equal work has been a long, difficult battle

• Requiring equal pay for equal work has been a long, difficult battle

• Attempts were made as early as the 1870’s and specific laws failed in Congress from 1945-1962 (mainly due to the use of the word “comparable”)

• The Equal Pay Act (EPA), which was passed the year before Title VII, makes it illegal to pay men and women different wages for jobs of equal work

Equal Pay

~ Equal Pay Act (1963) ~

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 other factor other than sex (FOS):

Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

The 4 Affirmative Defenses

The 4 Affirmative Defenses

• Only deals with sex differences in pay rates (EPA incorporated into the Fair Labor Standards Act; FLSA)

• No minimum requirement of 15 employees (only an opposite-sex comparator is needed)

• No proof of intent is needed

• Have 3 years to file a claim of a willful violation (rather than 2);

• Some public institutions added in 1966 with others included in 1974

• No compensatory or punitive damages allowed (but 3 years back pay and doubling of back pay awards available). Under the FLSA, an award of liquidated damages is equal to the amount of any award for lost or unpaid wages – so referred to often as double back pay

~ Some EPA Basics ~

EPA ProcessStep 1 Plaintiffs must show that jobs are equal

regarding skill, effort, responsibility, and work conditions

Step 2 Defendants can use any of the four affirmative statutory defenses to prove that pay differences are due to either seniority, merit, quantity or quality of work, or any factor other than sex (FOS). Minor differences in any category are insufficient to justify a claim FOS: “if there is any other factor not based on sex upon which a differential is based, then no violation of the law can be found” (109 Cong. Rec. 9203, 1963).

Step 3 Plaintiffs offer proof that the defendant’s reasons are a pretext for pay differences based on sex

The Bennett Amendment • Stated purpose of the Bennett Amendment was to

resolve any conflicts between Title VII and the EPA

• Designed to makes any EPA wage violation virtually an automatic Title VII violation

• Allows the plaintiff to file both EPA and Title VII claims for a single violation so long as they do not receive duplicative relief, but instead the maximum amount of relief allowed under both claims

--- The Bennett Amendment: It shall not be an unlawful employment practice

under this title for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of Section 6(d) of the Fair Labor Standards Act of 1938, as amended

• Courts often have found that a EPA victory will not automatically result in a Title VII victory

• Courts have assumed this position for two reasons ---

1) Prima facie burdens in the EPA establish only that the wage disparities cannot be legally explained

2) Title VII requires proof of illegal motive (intent). A showing of an EPA violation does not provide an indication of intent as required under Title VII

--- So, most courts have used EPA rules for EPA claims and Title VII rules for Title VII claims

However ---

Cases Where Defendants Lost (Jobs viewed as equal)

~ Equal Work Requirement ~

Different job titles and slightly different work (e.g., “extra” work) does not indicate that jobs are unequal

Hodgson v. Brookhaven General Hospital (1970)

– Established meaning of substantially equal jobs

– “Three-prong” test for extra work: For two jobs to be considered substantially unequal, extra work had to involve:• extra effort, • significantly more time, and • have an economic impact for the company

Corning Glass Works v. Brennan (1974)

– Corning claimed working conditions were different between night and day shifts

– Incumbent male workers kept higher wages after pay differences were eliminated (1969) --- “Red Circle” Effect (keeping higher salary of certain employees is only legal if sex-neutral)

• Male and female new hires received equal but lower wages

– The Supreme Court ruled that the “hazards” and “surroundings” at Corning were not substantially different across shifts

– Market Forces struck down as an FOS defense

(from Futran v RING Radio, citing Corning and other cases): “Paying a lesser rate simply because the market will bear that rate is impermissible under the Equal Pay Act.”

Thompson v. Sawyer (1982)

• Male “bookbinders” paid more than female “bindery workers”

• Use of different equipment does not make the jobs different

DOL Regulation: Performance of jobs on different machines or equipment would not

necessarily result in a determination that the work so performed is unequal within the meaning of the statute if the equal pay provisions otherwise apply.

Bookbinders – 279 males (classified as higher wage craft)Bindery workers (325 females)

Level 4 (found to be substantially equal to male bookbinder jobs)Level 3Level 2 Level 1

Damages for:•EPA violation (pay differential) and •Title VII (lack of promotion; pattern or practice violation)

Laffey v. Northwest Airlines (1984)

• Male “pursers” and female “stewardesses” performed equal work for unequal pay

• Airline lost under four different defences:

1) BFSS

2) fewer benefits for females who might become pregnant

3) heavy penalties would destroy the airline and

4) a comparable worth claim that “stewardesses” were less valuable to the company

City of Los Angeles Department of Water and Power v. Manhart (1978)

Females paid more into their retirement plan than males (they live longer, so they cost the pension fund more money)

Water Department defense: Longevity is a FOS

The Department argues that the different contributions exacted from men and women were based on the factor of longevity rather than sex. It is plain, however, that any individual's life expectancy is based on a number of factors, of which sex is only one. The record contains no evidence that any factor other than the employee's sex was taken into account in calculating the 14.84% differential between the respective contributions by men and women.

We agree with Judge Duniway's observation that one cannot "say that an actuarial distinction based entirely on sex is `based on any other factor other than sex.' ….. Sex is exactly what it is based on."

~ FOS ~

~ The Establishment ~

In most cases, a distinct, physical location

But, key criteria is centralized control over administrative affairs

Brennan v. Goose Creek (1975)

• Female janitors were paid less than male janitors • Different janitors worked at different elementary schools

• School District defense: Each elementary school is a “separate establishment”

• Circuit Court: Ruled against the school district

“Establishment” is defined by “who calls the shots” [Central Administration] The record reveals that the central administration of the school district (not the principals of the schools) hired the janitors, determined their wages, assigned them to the school building in which they were to work, and sometimes switched their assignments from one building to another.

Finally, the record discloses that the work schedule and the janitors' daily duties - controlled to a large extent by the central administrators - do not differ from building to building. 

Comparable Worth Claims in Title VII

• Equal work under EPA is a dichotomy: two jobs either are or are not substantially equal– Usually based on job analysis data

• Comparable Worth represents a continuum of value to the organization– Usually based on job evaluation and internal value

to company– For example, A job assigned a value of 100 points

is valued at $10/hr• Any other job valued at 100 points should also

be worth $10/hr• External worth is based on market forces (outside the

organization)– Comparable worth proponents argue female

dominated jobs are under-valued because of past social injustices (not supported by the courts)

• Lemons v. Denver (1980)―interpreted Bennett Amendment as allowing equal work claims in both EPA and Title VII

• County of Washington v. Gunther (1981)―Supreme Court ruled Bennett Amendment does not prohibit Title VII comparable worth claims– EPA is limited to wage discrimination whereas

Title VII is not– Did not validate comparable worth; did permit

plaintiffs to try to make a prima facie claim via Title VII

Comparable Worth (cont.)

• Thus far, plaintiffs have lost every comparable worth case

Alexander v. Chattahoochee Valley Community College

• Alexander’s claimed that her job of Admissions Clerk was paid less than two director jobs (Auxiliary Services & Institutional Advancement)

~Comparable Worth Example Opinion ~

Alexander’s argument that her job requires a substantially similar amount of skill, effort, and responsibility is essentially a “comparable worth” claim, or a claim that her job has the same “intrinsic worth or difficulty” … even though it involves doing different work … Whatever its merits as a theory may be, courts have held that comparable worth claims are not cognizable under either Equal Pay Act or Title VII.

Use of Statistics in Comparable Worth Claims

From AFSCME v Washington (1985) … job evaluation studies and comparable worth statistics alone are insufficient to establish the requisite inference of discriminatory motive critical to the disparate treatment theory …

From American Nurses v. Illinois (1986; referencing AFSCME):

The critical thing lacking in AFSCME was evidence that the state decided not to raise the wages of particular workers because most of those workers were female.

~ Role of Past Salary and Market Forces ~

• Market forces argument as a FOS generally found to violate the EPA

• Less agreement on the use of prior salary (if prior salary is the only differentiating factor, then FOS defense generally not legitimate)

-- Years of experience and previous salary are the strongest predictors of starting salary, and starting salary is the greatest predictor of current salary Mickey Silberman, A New Day for Pay Discrimination Enforcement, Industry Liaison Group Conference 2011

Kouba v. Allstate (1982):

To determine minimum salary, company used ability, education, experience, and prior salary (minimum salary was the only money paid until the training period was over (8-13 weeks)

On average, female agents were paid less than their male counterparts

Title VII suit filed but company defended prior salary as a FOS

The Equal Pay Act concerns business practices. It would be nonsensical to sanction the use of a factor that rests on some consideration unrelated to business. An employer thus cannot use a factor which causes a wage differential between male and female employees absent an acceptable business reason. Conversely, a factor used to effectuate some business policy is not prohibited simply because a wage differential results.

Relevant considerations in evaluating the reasonableness of this practice include

1)The use of other available predictors

2) Less use of prior salary after on-the-job performance is known

3) Whether the employer relies more heavily on salary when the prior job resembles the job of sales agent

>>> Allstate used prior salary as a motivating force and to predict performance; that salary corresponds roughly to an employee's ability>>>

From Kouba

~ Paycheck Fairness Act* ~

Factor Other Than Sex = a "bona fide factor other than sex" (BFFOS)

• Not based upon or derived from a sex-based differential in compensation • Job-related with respect to the position in question • Consistent with business necessity

* PFA failed by 2 votes in 2010

~ Paycheck Fairness Act (cont.) ~

• Broadened definition of establishment to include subdivisions within states (e.g., counties)

• Specifically incorporated “opposition” and “participation” clauses (from Title VII retaliation claims)

• Included compensatory and punitive damages

• Class action suits from current “opt in” to “opt out”

More on the “Establishment”

Meeks v. Computer Associates (1994):

Meeks and another females employee were paid less relative to two men at the same location

Company: Males and females in Meek’s job paid the same across the nation

Court: Decisions were not centrally made (made within each geographic location)

OFCCP and Pay Discrimination

• Secretary of Labor Hilda Solis’s goal of 20-40% of all OFCCP settlements to be focused on compensation.

• 2008: No pay discrimination settlements

• 2009: 2 pay discrimination settlements

• 2010: 10 settlements involving compensation.

Proposed revision to desk audit screening device (past process resulted in few in-depth investigations of pay discrimination)

They would look to see if there is a 2% or $2,000 difference in any pay grouping. Mickey Silberman and colleagues did a study of over 100 clients and found that 100% of them would fail the new screen

Ledbetter v. Goodyear (2007)

Key Question: What is an unlawful employment and when does of occur? Discrete act or continuing violation?

Dissent: Pay decisions are different than discrete acts (e.g., firing, not hiring or promoting). Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Small initial discrepancies may notbe seen as meet for a federal case …

SC Decision: “an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. It is not, as Ledbetter contends, a “paycheck accrual rule” under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period” (From Ledbetter siting Bazemore v. Friday)

Delaware State College v. Ricks (1980); Denial of tenure decision begins filing period NOT 1 year later when results occur

United Air Lines, Inc. v. Evans (1977); Discriminatory dismissal decision (got married); suit file (not part of it) and collective bargaining agreement removed marriage rule and reinstated certain attendants (not covered by agreement) – rehired years later with no seniority credit. Past discrimination which led to no seniority not a continuing violation

Lily Ledbetter Paycheck Fairness Act (2009)

An illegal employment act occurs when:

1) When a discriminatory compensation decision or other practice is adopted

2) When an individual becomes subject to a discriminatory compensation decision or other practice

3) When an individual is affected by its application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Act is retroactive to claims of discriminatory compensation pending or after May 28, 2007