prevents the maximum utilization of the available labor resources;
tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
burdens commerce and the free flow of goods in commerce; and
constitutes an unfair method of competition.
The law provides in part that "[n]o employer having employees subject to any provisions of this section [section 206 of title 29 of the United States Code] 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 [...]."[4]
In 1944, Republican congresswoman Winifred C. Stanley from Buffalo, N.Y. introduced H.R. 5056, Prohibiting Discrimination in Pay on Account of Sex, which did not pass at the time.[5] The issue languished until 10 June 1963, when Congress passed the Equal Pay Act[6] ("EPA" or the "Act")[7] as an amendment to the Fair Labor Standards Act,[8] to "prohibit discrimination on account of sex in the payment of wages by employers."
Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of Congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of "concern for the weaker bargaining position of women" to provide a remedy to discriminatory wage structures that reflect "an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman."[9] The EPA protects both men and women. It also protects administrative, professional and executive employees who are exempt under the Fair Labor Standards Act.
The EPA, Section 206(d)(1), prohibits "employer[s] ... [from] discriminat[ing] … on the basis of sex by paying wages to employees [...] at a rate less than the rate [paid] to employees of the opposite sex [...] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]" To establish a prima facie case under the EPA, an employee must show that:
different wages are paid to employees of the opposite sex;
the employees perform substantially equal work on jobs requiring equal skill, effort, and responsibility; and
the jobs are performed under similar working conditions.[10]
The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender, employees within the same establishment for equal work at jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions.
It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements of the prima facie case, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.
Once a plaintiff meets her or his heavy burden and establishes a prima facie case of gender discrimination under the EPA, then the defendant may avoid liability only by proving the existence of one of four statutory affirmative defenses.[11] The EPA’s four affirmative defenses allow unequal pay for equal work when the wages are set "pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) ... any other factor other than sex[.]"
Congressional intent
Upon its initial enactment, the EPA was "the first step towards an adjustment of balance in pay for women.”[12] As a part of the Fair Labor Standards Act of 1938, the EPA was subject to the scope and exceptions of covered employees and employers contained within that act.[13] On the floor of the House of Representatives, many Representatives voiced their concern that the EPA should act as the starting point for establishing pay parity for women. Subsequent to the enactment of the EPA, Congress undertook two actions which broadened the scope of federal protection against wage discrimination on the basis of sex.
First, the same 88th Congress enacted Title VII of the Civil Rights Act of 1964.[14] By including sex as an element protected from discrimination, Title VII expanded the protection of women from employment discrimination, to include almost all employees working for employers with fifteen or more employees.[15] Foreseeing the potential conflict between the administration of two statutes with overlapping restrictions, Congress included the Bennett Amendment in Title VII of the Civil Rights Act of 1964, which incorporates the EPA’s four affirmative defenses into Title VII.[16]
Second, Congress expanded the EPA’s coverage to professionals and other white-collar employees.[17] For the first nine years of the EPA, the requirement of equal pay for equal work did not extend to persons employed in an executive, administrative or professional capacity, or as an outside salesperson. Therefore, the EPA exempted white-collar women from the protection of equal pay for equal work. In 1972, Congress enacted the Education Amendments of 1972, which amended the FLSA to expand the coverage of the EPA to these employees, by excluding the EPA from the professional workers exemption of the FLSA.
Congress' consideration of economic consequences
The Congress did not ignore the EPA’s economic consequences on the salaries and employment opportunities for both men and women.[18] First, as an amendment of the FLSA, the EPA is part of the same legislative structure that houses the federal minimum wage laws.[19] The EPA acts as a wage equalizer between men and women for equal jobs, and has the potential of acting as a price floor on the salaries of men or women for particular jobs.[20] Economists, such as Thomas Sowell have asserted the EPA causes unemployment, and additional discrimination against women by excluding them from the labor market.[21] Second, several Representatives voiced their concerns that the negative impact of setting price floors on the wages paid to women would reduce the availability of jobs for women.[22] With the possible side effects of the Act noted on the Congressional record, the Act passed with little opposition, and no indication that any of the four affirmative defenses were intended to remedy or limit its negative consequences.
Impact
Earnings gap
Average American women’s salaries have risen relative to men's since the EPA’s enactment, from 62.3% of men’s earnings in 1979 to 81.1% in 2018.[23]
Further legislation
The EPA did not originally cover executives, administrators, outside salespeople, and professionals, but the Education Amendments of 1972 amended the EPA so that it does.[24][25]
In 2005, Senator Hillary Clinton introduced the "Paycheck Fairness Act," which proposed to amend the EPA’s fourth affirmative defense to permit only bona fide factors other than sex that are job-related or serve a legitimate business interest.[26] Representative Rosa DeLauro first introduced an identical bill in the House of Representatives on the same day.[27]
In 2007, the Supreme Court restricted the applicable statute of limitations for equal pay claims in Ledbetter v. Goodyear. On January 29, 2009, PresidentBarack Obama signed into law the Lilly Ledbetter Fair Pay Act, which overturned the Court's holding in this case. This bill, providing that each gender-unequal paycheck is a new violation of the law, was the first bill signed by President Obama.
Enforcement
Initially, a 2007 study commissioned by the Department of Labor[28] cautioned against overzealous application of the EPA without closer examination of possible reasons for pay discrepancies. This study noted, for example, that men as a group earn higher wages in part because men dominate blue collar jobs, which are more likely to require cash payments for overtime work; in contrast, women comprise over half of the salaried white collar management workforce that is often exempted from overtime laws.[29] In summary, the study stated: "Although additional research in this area is clearly needed, this study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers."[30]
However, later, in 2021, a Department of Labor blogpost observed, "Women earn less than their same race and ethnicity counterpart at every level of educational attainment - Compared with white men with the same education, Black and Latina women with only a bachelor's degree have the largest gap at 65%, and Black women with advanced degrees earn 70% of what white men with advanced degrees earn. Educational attainment is not enough to close gender earnings gaps. In fact, most women with advanced degrees earn less than white men, on average, with only a bachelor's degree."[31]
Outside the United States
The Equal Pay Act 1970 was an Act of the Parliament of the United Kingdom that prohibited any less favourable treatment between men and women in terms of pay and conditions of employment. The Equal Pay Act 1970 has now been mostly superseded by Part 5, chapter 3, of the Equality Act 2010.
See also
Wikisource has original text related to this article:
↑ Corning Glass Works v. Brennan, 417 U.S. 188, 208 (1974) ("The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve.").
↑ See Corning Glass Works v. Brennan, 417 U.S. 188, 203 fn. 24 (stating that jobs need to be substantially equal fall within the EPA); Fallon v. State of Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989)(enumerating the elements of a prima facie case under the EPA).
↑ 109 Cong. Rec. 9193 (1963) (Rep. Frances P. Bolton).
↑ See 29 U.S.C. § 201 et seq. (2006); 109 Cong. Rec. 9193 (1963) (Rep. St. George) ("All of the [FLSA] exemptions apply; and this is very noteworthy, agriculture, hotels, motels, restaurants, and laundry are excluded. Also all professional, managerial, and administrative personnel[.]")
↑ Pub. L. No. 88-352, §§701–718, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§2000e to 2000e-17 (2006)). Title VII prohibits employers from "discriminate[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals…sex…." 42 U.S.C. §2000e-2(a).
↑ See 42 U.S.C. § 2000e-2(h) (2006) ("It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of [the EPA]."). Senator Bennett proposed his amendment to ensure that in the event of conflicts between Title VII and the EPA, "the provisions of the [EPA] shall not be nullified." 110 Cong. Rec. 13647 (1964) (statement of Sen. Bennett). The Supreme Court interpreted the Bennett Amendment as incorporating only the EPA’s four affirmative defenses into Title VII sex discrimination claims. County of Washington v. Gunther, 452 U.S. 161, 171 (1981). It is important to note that the prima facie case of sex discrimination under Title VII is different from the EPA. For example, Title VII requires intent to discriminate on the basis of sex, and does not require that a plaintiff prove job equality or identify a male comparator. See Gunther, 452 U.S. at 164, 178. For a discussion of the differences between Title VII and EPA claims, see Peter Avery, Comment, The Diluted Equal Pay Act, 56 RUTGERS L. REV. 849, 852 (Spring 2004). For a comprehensive list of specific differences between Title VII and the EPA, see Ana M. Perez-Arrieta, Comment, Defenses to Sex-Based Wage Discrimination Claims at Educational Institutions: Exploring "Equal Work" and “Any Other Factor Other Than Sex” in the Faculty Context, 31 J.C. & U.L. 393, 397 n. 36 (2005).
↑ See Education Amendments of 1972, Pub. L. No. 92-318, § 906(b)(1), 86 Stat. 235, 375 (codified as amended at 29 U.S.C. § 213(a)(1) (2006)) (removing operation of FLSA exemption of professional employees from EPA).
↑ "I am not so sure that the [EPA] in the long run is going to benefit the women employees[.] It is highly probable that the employers may find it advantageous to employ men in positions now filled by women. Certainly, they would feel inclined to do so in marginal instances where the labor market is plentiful. In other words, it is highly probable that the passage of [the EPA] would result in less employment for women." 109 Cong. Rec. 9203 (1963) (Rep. Colmer); Id. at 9205 (Rep. Findley) ("I think we need to consider some of the possible side effects of [the EPA] and go into the whole proposal for equal pay for women with our eyes open, realizing it may possibly bar women from some job opportunities."); Id. at 9208 (Rep. Goodell) ("I think many women advocating this legislation recognize that in some instances the women are going to lose their jobs because an employer has to pay women the same price he [SIC] pays men. In many other cases, women will just not be hired.").
↑ See 29 U.S.C. § 201, et seq.; 29 C.F.R. 1620.1 (2006).
↑ The act’s consequence as a price floor is only a potential under the EPA, because an employee must establish that a member of the opposite sex receives a higher salary for equal work. Therefore, if an employer chooses to hire only men, or only women for a particular job, there is no potential for a pay disparity between genders for the performance of equal jobs. In the case an employer chooses to hire only men to perform a specific job, a woman may have a cause of action for intentional gender discrimination under Title VII of the Civil Rights Act of 1964.
↑ See, e.g., Thomas Sowell, BASIC ECONOMICS 163–69 (2004) (explaining the effects of federal minimum wage laws including increased unemployment and the decreased cost of discrimination).
↑ See, e.g.,109 Cong. Rec. 9193 (1963) (Rep. Colmers).
↑ Paycheck Fairness Act, S. 841 109th Cong. (2005) (Sponsored by Senator Hillary Clinton).
↑ Paycheck Fairness Act, H.R. 1687 109th Cong. (2005) (Sponsored by Representative Rosa DeLauro).
↑ Blau, Francine and Lawrence Kahn. 2007. "The Gender Pay Gap: Have Women Gone as Far as They Can?" Academy of Management Perspectives 21(1): 7-23. (at jstor)
The Civil Rights Act of 1964 is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, and national origin. It prohibits unequal application of voter registration requirements, racial segregation in schools and public accommodations, and employment discrimination. The act "remains one of the most significant legislative achievements in American history".
The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency that was established via the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability, genetic information, and retaliation for participating in a discrimination complaint proceeding and/or opposing a discriminatory practice.
United States labor law sets the rights and duties for employees, labor unions, and employers in the US. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in the corporate or other forms of ownership association". Over the 20th century, federal law created minimum social and economic rights, and encouraged state laws to go beyond the minimum to favor employees. The Fair Labor Standards Act of 1938 requires a federal minimum wage, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half overtime pay. There are no federal laws, and few state laws, requiring paid holidays or paid family leave. The Family and Medical Leave Act of 1993 creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed Social Security, but the Employee Retirement Income Security Act of 1974 requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of 1970 requires employees have a safe system of work.
Equal pay for equal work is the concept of labour rights that individuals in the same workplace be given equal pay. It is most commonly used in the context of sexual discrimination, in relation to the gender pay gap. Equal pay relates to the full range of payments and benefits, including basic pay, non-salary payments, bonuses and allowances. Some countries have moved faster than others in addressing equal pay.
Employment discrimination is a form of illegal discrimination in the workplace based on legally protected characteristics. In the U.S., federal anti-discrimination law prohibits discrimination by employers against employees based on age, race, gender, sex, religion, national origin, and physical or mental disability. State and local laws often protect additional characteristics such as marital status, veteran status and caregiver/familial status. Earnings differentials or occupational differentiation—where differences in pay come from differences in qualifications or responsibilities—should not be confused with employment discrimination. Discrimination can be intended and involve disparate treatment of a group or be unintended, yet create disparate impact for a group.
Equal employment opportunity is equal opportunity to attain or maintain employment in a company, organization, or other institution. Examples of legislation to foster it or to protect it from eroding include the U.S. Equal Employment Opportunity Commission, which was established by Title VII of the Civil Rights Act of 1964 to assist in the protection of United States employees from discrimination. The law was the first federal law designed to protect most US employees from employment discrimination based on that employee's race, color, religion, sex, or national origin.
Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories". The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), is an employment discrimination decision of the Supreme Court of the United States. Employers cannot be sued under Title VII of the Civil Rights Act of 1964 over race or gender pay discrimination if the claims are based on decisions made by the employer 180 days ago or more. Justice Alito held for the five-justice majority that each paycheck received did not constitute a discrete discriminatory act, even if it was affected by a prior decision outside the time limit. Ledbetter's claim of the “paycheck accrual rule” was rejected. The decision did not prevent plaintiffs from suing under other laws, like the Equal Pay Act, which has a three-year deadline for most sex discrimination claims, or 42 U.S.C. 1981, which has a four-year deadline for suing over race discrimination.
Occupational segregation is the distribution of workers across and within occupations, based upon demographic characteristics, most often gender. Other types of occupational segregation include racial and ethnicity segregation, and sexual orientation segregation. These demographic characteristics often intersect. While a job refers to an actual position in a firm or industry, an occupation represents a group of similar jobs that require similar skill requirements and duties. Many occupations are segregated within themselves because of the differing jobs, but this is difficult to detect in terms of occupational data. Occupational segregation compares different groups and their occupations within the context of the entire labor force. The value or prestige of the jobs are typically not factored into the measurements.
The Fair Labor Standards Act of 1938 29 U.S.C. § 203 (FLSA) is a United States labor law that creates the right to a minimum wage, and "time-and-a-half" overtime pay when people work over forty hours a week. It also prohibits employment of minors in "oppressive child labor". It applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce, unless the employer can claim an exemption from coverage. The Act was enacted by the 75th Congress and signed into law by President Franklin D. Roosevelt in 1938.
The Bennett Amendment is a United States labor law provision in the Title VII of the Civil Rights Act of 1964, §703(h) passed to limit sex discrimination claims regarding pay to the rules in the Equal Pay Act of 1963. It says an employer can "differentiate upon the basis of sex" when it compensates employees "if such differentiation is authorized by" the Equal Pay Act.
Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others.
The Paycheck Fairness Act is a proposed United States labor law that would add procedural protections to the Equal Pay Act of 1963 and the Fair Labor Standards Act as part of an effort to address the gender pay gap in the United States. A Census Bureau report published in 2008 stated that women's median annual earnings were 77.5% of men's earnings. Recently this has narrowed, as by 2018, this was estimated to have decreased to women earning 80-85% of men's earnings. One study suggests that when the data is controlled for certain variables, the residual gap is around 5-7%; the same study concludes that the residual is because "hours of work in many occupations are worth more when given at particular moments and when the hours are more continuous. That is, in many occupations, earnings have a nonlinear relationship with respect to hours."
County of Washington v. Gunther, 452 U.S. 161 (1981), is a United States labor law case concerning discrimination and the lower standards of protection for gender pay because of the Bennett Amendment in Title VII of the Civil Rights Act of 1964, §703(h).
Equal Pay Day is the symbolic day dedicated to raising awareness of the gender pay gap. In the United States, this date symbolizes how far into the year the average median woman must work in order to have earned what the average median man had earned the entire previous year. The exact day differs year by year. In 2022, it was March 15. On average, women earn $0.82 for every dollar men earned in 2019.
The gender pay gap in New Zealand is the difference in the median hourly wages of men and women in New Zealand. In 2020 the gender pay gap is 9.5%. It is an economic indicator used to measure pay equality. The gender pay gap is an official statistic published annually by Stats NZ sourced from the Household Labour Force Survey.
Johnson v. Transportation Agency, 480 U.S. 616 (1987), is the only United States Supreme Court case to address a sex-based affirmative action plan in the employment context. The case was brought by Paul Johnson, a male Santa Clara Transportation Agency employee, who was passed over for a promotion in favor of Diane Joyce, a female employee who Johnson argued was less qualified. The Court found that the plan did not violate the protection against discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964.
Sexual harassment in the workplace in US labor law has been considered a form of discrimination on the basis of sex in the United States since the mid-1970s. There are two forms of sexual harassment recognized by United States law: quid pro quo sexual harassment and behavior that creates a hostile work environment. It has been noted that a number of the early sexual harassment cases were brought by African American women and girls.
Authored by State Senator Hannah-Beth Jackson, the California Fair Pay Act is an amendment to the existing California labor laws that protects employees who want to discuss about their co-workers' wages as well as eliminating loopholes that allowed employers to justify inequalities in pay distribution between opposite sexes. The bill is an extension of the California Equal Pay Act of 1949, which was originally intended to enforce equal pay.
Prior salary information is one of the factors involved in the implementation of the Equal Pay Act and prior salary legislation in the United States.
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