Claims for Unequal Pay Under the Equal Pay Act/Title...
Transcript of Claims for Unequal Pay Under the Equal Pay Act/Title...
©2015
Cheri L. Cannon, Esq. Tully Rinckey PLLC
815 Connecticut Avenue NW, Suite 700
Washington, D.C. 20006
202-787-1900 [email protected]
Claims for Unequal Pay Under
the Equal Pay Act/Title VII
Inception of the Equal Pay Act:
• The Equal Pay Act amended the Fair Labor Standards Act and
was aimed at abolishing wage disparities based on sex.
• The Act was signed into law by John F. Kennedy as part of his
“New Frontier Program.” He made a famous speech at the
Democratic National Convention:
“We stand today on the edge of a New Frontier — the frontier of the 1960s, the frontier of unknown opportunities and perils, the frontier of unfilled hopes and unfilled threats. ... Beyond that frontier are uncharted areas of science and space, unsolved problems of peace and war, unconquered problems of ignorance and prejudice, unanswered questions of poverty and surplus.”
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A Bit of Background
Initially, there were five (5) reasons given for the creation of
the law.
The reasons were that inequality in pay:
1. Depresses wages and living standards for employees necessary for their health and efficiency;
2. Prevents maximum utilization of the available labor
resources;
3. Tends to cause labor disputes-burdens and affects
commerce;
4. Burdens commerce and the free flow of goods in
commerce; and
5. Constitutes an unfair method of competition.
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Congressional Intent
• The Congressional intent behind the Equal Pay
Act was that it was a first step towards an
“adjustment” of balance in pay for women.
• This scope was considered one-sided as
protecting women only and The House of
Representative had concerns about this scope.
• The scope was then broadened to be wage
disparity on the basis of sex.
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The Equal Pay Act states, in relevant
part that: “No employer…shall discriminate…between employees on
the basis of sex by paying wages to employees…at a rate
less than the rate at which he pays employees of the opposite sex…for equal work on jobs, the performance of
which requires equal skill, effort and responsibility, and which
are performed under similar working conditions.”
• Unlike Title VII, which we will discuss briefly later on in the
presentation, the Equal Pay Act has a requirement that
the work being performed by employees is the same.
29 U.S.C. § 206.
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So, how do you prove an Equal Pay
Act Claim?
Prima facie case:
To establish a prima facie case under the Equal Pay
Act, an employee must prove:
1. That different wages are paid to employees of the
opposite sex;
2. That the employees perform substantially equal
work for jobs requiring equal skill, effort and
responsibility; and
3. That the jobs are performed under similar working
conditions.
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Statutory Defense
This prima facie requirement is a heavy burden to meet; and, once proven, a defendant/employer can avoid liability by
proving one of the four statutory defenses provided to it.
Basically, an employer can rebut an employee’s prima facie case
by showing that wages are being paid pursuant to:
• A seniority system;
• A merit system;
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Statutory Defense - Continued Basically, an employer can rebut an employee’s prima facie case
by showing that wages are being paid pursuant to:
• A system that measures earnings by quantity or quality of
production; or
• A differential based on any other factor based on sex.
– An example of this would be higher prior salary. Some courts
have authorized employers to pay males more based on
higher prior salaries enjoyed by those male workers without
necessarily analyzing whether the prior salary was inflated
because of sex discrimination. See e.g. Sparrock v. NYP
Holdings, Inc. 2008 WL 744733 (S.D.N.Y. 2008).
• This last one has been protested by women against because it
still speaks to discrimination.
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Employee Needs All, Employer Needs One
So an employee needs to prove ALL three elements to establish a
prima facie case; whereas an employer only needs ONE statutory
defense to rebut an employee’s allegations of unlawful unequal pay.
HOWEVER: • Generally, there is no “intent requirement” within the language
of the statute:
• If you can prove the three requirements and establish a prima
facie case, you can prevail regardless of the employer’s
intention in pay disparity.
• It is a strict liability rule against wage discrimination on the basis of
gender.
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Examples
• Example 1: An employer who pays male employees more than
female employees doing the same job, just because their work
occurs at different times of day, discriminates based on sex. Time
of day alone is not a sufficient factor other than sex sufficient to
pay different wages or to justify unequal pay.
- Corning Glass Works v. Brennan, 417 U.S. 188 (1974)
• Example 2: A female engineer who worked 30 hours a week was
allowed to compare herself to a full-time male colleague with
similar title, duties and responsibilities for purposes of proving
unequal pay. - Lovell v. BBNT Solutions, 295 F. Supp. 2d 611 (E.D. Va. 2003)
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Title VII
• There was quite a push in the 1960s regarding equal rights
for all and so, after the enactment of the Equal Pay Act,
Title VII of the Civil Rights Act of 1964 was enacted:
– By including sex as protected from discrimination, Title VII basically expanded the protection of women to
include all employees working for employers with
fifteen (15) or more employees.
– Congress basically acknowledged that there could be a conflict between the two Acts.
– To curb this conflict, Congress included the Bennett
Amendment in Title VII which incorporates the 4
affirmative defenses into Title VII.
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White Collar Employees
• As much as the Equal Pay Act was created to
curb wage discrepancy in similar jobs, it initially
exempted white-collar employees/women from
protection.
White collar employees:
1. Executive positions;
2. Administrative or professional capacity
positions; and
3. Employees working as outside salesmen.
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Negatives of the Act
• Equal Pay Act was basically supposed to act as a wage
equalizer between men and women for equal jobs.
However it tends to create a price floor on salaries.
– Potential for causing the same problems as minimum wage laws – Unemployment and discrimination.
– Negative impact of creating a price floor would
reduce availability of jobs for women.
– The four affirmative defenses don’t remedy/limit the negative consequences.
– Men tend to dominate blue collar jobs, which generally
cash out more if you bear in mind overtime work – So women still end up losing out.
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Additional Exemptions: The Act does not necessarily apply in certain situations. There are numerous
exemptions from its reach, but some of these below are interesting:
• Any employee employed in a bona fide executive, administrative, or professional capacity (including academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman;
• Any employee employed by an establishment which is an amusement or
recreational establishment, organized camp, or religious or non-profit educational conference center:
– Requirements for exemption under this category:
• The facility does not operate for more than seven months in a calendar year.
• During the preceding year, its average income/receipts for any six months were not more than 33 1/3 percent of its average receipts for the other six months.
– Does NOT apply to any employee of a private entity providing services in a national park, national forest, or on land in the National Wildlife Refuge System,
under a contract with the Secretary of the Interior or the Secretary of Agriculture.
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Additional Exemptions: The Act does
not cover:
• Any employee employed in the catching/farming of any kind of fish or
aquatic animal and/or vegetable life.
– Includes canning or packing marine products
• Any employee employed in agriculture
– If the employer did not use more than five hundred man-days of
agricultural labor in any calendar quarter;
– If the employee is related to the employer (parent, spouse, child);
– If the employee is employed as a hand harvest laborer
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Additional Exemptions:
• Any employee employed in connection with the
publication of any weekly, semiweekly or daily
newspaper with a circulation of less than 4000;
• A switchboard operator employed by an
independently owned public phone company with
no more than 750 stations;
• Domestic service employment such as babysitting;
• A criminal investigator; and
• A computer systems analyst/programmer/software
engineer.
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Some Penalties for Violating the Law:
• Fines and imprisonment
– Not more than $10,000
– Not more than 6 months imprisonment
• Employee who prevails against an employer can
secure damages
– Unpaid minimum wages, unpaid overtime
compensation, liquidated damages
– Attorney’s fees and costs
• Injunction
Statute of Limitations: 2 Years
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What does the law provide?
• Equal Pay Act and Title VII go hand in hand. So someone
with an Equal Pay Act claim can also bring a claim under
Title VII.
• The only difference is that under Title VII, there is no requirement that the jobs be substantially equal.
• Equal Pay Act claims are harder to prove than Title VII
claims because they require a comparison between
similarly situated male and female employees, yet not all workplaces have such diverse workplaces for comparison.
• In general, the focus of the Equal Pay Act is on the duties
performed on the job – job titles, classifications and job
descriptions may factor in, but do not, in and of
themselves, determine the answer.
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Lilly Ledbetter Fair Pay Act of 2009
• On January 29, 2009, President Obama signed into law the
Lilly Ledbetter Fair Pay Act of 2009. This was the first piece
of legislation of the Obama administration. This law
reversed the Supreme Court's decision in Ledbetter v.
Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007),
which substantially constricted the timeframe for filing
employment discrimination complaints dealing with
compensation.
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Lilly Ledbetter Fair Pay Act of 2009
• The Act references the Equal Employment Opportunity
Commission’s longstanding stance that each paycheck
containing discriminatory compensation represents an
individual violation regardless of when the discrimination
began. The Ledbetter Act highlights the "reality of wage
discrimination" and revitalizes "bedrock principles of
American law." Of notable significance for discrimination
victims, the Act contains an explicit retroactivity provision.
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Lilly Ledbetter Fair Pay Act of 2009
• Those challenging varied types of practices that
culminated in discriminatory compensation can benefit
from the Act's passage. Such practices may encompass
job classifications, employer decisions about base pay or
wages, tenure denials, career ladder or other
noncompetitive promotion denials, and failure to respond
to requests for raises.
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What do you do if you feel your rights
have been violated?
• File a charge of discrimination at the EEOC
– Although this is not required under the EPA, your equal pay claim may overlap with discrimination under Title
VII.
– It is best to file charges under both laws.
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In Conclusion:
• Over fifty years after the Equal Pay Act became law,
American women still earn, on average, much less than
their male counterparts. In 2009, mothers fared even
worse: married mothers earn only 69 cents for every dollar earned by their male counterparts and single mothers
earn 58 cents for every dollar earned by married men with
children.
• While some of the wage gap can be explained by
choices women make, a large percent can be attributed
to discrimination.
- Ann M. O’Leary, Lilly Ledbetter Fair Pay Act Won’t Close Wage Gap Between Men
and Women, S.F. Chron., Feb. 4, 2009, http://articles.sfgate.com/2009-0204/opinion/17188326_1_wage_gap_obama’s_ first_sick_family_member.
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How an Experienced Attorney Can Help You:
• Counseling You on Recognizing and Preserving Your Claims – Identifying your claims
– Counseling you through difficult situations
– Determining whether an exception to the rules applies
– Acquiring and developing evidence to prove your claims
• Negotiating with the Agency to Settle Your Dispute – Evaluating the strengths and weaknesses of your case
– Counseling you on the pros and cons of early resolution
– Leveraging your case and its facts to your benefit
– Ensuring a settlement is in YOUR best interest
– Protecting you in the event the Agency breaches the agreement
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How an Experienced Attorney Can Help You:
• Ensuring Timeliness – Missing a deadline may result in dismissal or other significant
harm to your case
– Navigating complex deadlines and procedures
• Leveling the Playing Field to Prevent Injustice
– Neutralizing aggressive defense tactics agencies use
– Recognizing improper evidence requests and developing an accurate record
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Do You Need Further Information?
– Call 202-787-1900 or email [email protected] to
learn more about our partnership with Federally
Employed Women and schedule your FREE consultation!
– Let us provide you with personalized, professional, and
affordable legal services.
All private consultations are confidential and subject to the attorney-client privilege.
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Cheri L. Cannon, Esq. Tully Rinckey PLLC
815 Connecticut Avenue NW, Suite 700
Washington, D.C. 20006
202-787-1900 [email protected]
Questions?