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Equal Pay Act

Equal Pay Act



What is the Equal Pay Act of 1963?

The Equal Pay Act of 1963 explicitly banned wage and job discrimination on the basis of  sex citing such discrimination's impact on commercial efficiency, living standards and competition.  The Equal Pay Act was an amendment to the Fair Labor Standards Act of 1938 that provided such reforms as overtime pay and a ban on child labor.  Congress derived the power to legislate on this matter through the interstate commerce clause as many commercial enterprises conduct business that crosses state lines.  This was the first in a series of legislation that also banned racial, ethnic, disability and age discrimination during the 1960s.


The Equal Pay Act allows employees to bring suit against an employer if they can prove that:

– Different wages are paid to employees of the opposite sex

– The employees are paid differently for that same work

– The jobs are performed in similar conditions

Jobs requiring “equal skill, effort, and responsibility, and which are performed under similar working conditions” must pay the same wage for both genders, with a few mitigating factors for the individual potential of the employee, usually related to employee responsibility.  Labor unions are also prevented from encouraging gender discrimination, reflecting the possibly of some male-dominant unions encouraging keep wages for women low.

The employer is also prevented for adjusting wages, such as lowering one gender’s pay to match the other to comply with federal standards.  The employer retains the right to vary pay based on experience, merit, production quota and any other non-discriminatory measures of ability.  These rights are known as the four affirmative defenses.  If the employer can prove that the wage inequality is due to seniority, merit, quota production, or any other factor than sex, the employer can avoid legal liability.

All forms of compensation are included in this legislation including benefits, vacation days, insurance coverage and reimbursement for company expenses.  The intention of this legislation is to strengthen the bargaining power of women in the workplace by equaling her status with that of a man.  Previously, a lack of status impeded women in negotiations as the employers began such proceedings with an assumption of inferiority making the result of these negotiations inherently illegal.

How does it relate to the Civil Rights Act of 1964?

Some provisions of the Equal Pay Act have been incorporated into Title VII of the Civil Rights Act via the Bennett Amendment.  The Bennet Amendment created a unified federal code on discrimination by reconciling the two documents and incorporating it as a provision of Title VII of the Civil Rights Act.  

What are amendments to the Equal Pay Act?

White collar women working as executives, professionals, sales or any administrative capacity were exempt from the EPA until the Educational Amendment of 1972, which extended the coverage to their professions.  

The Lilly Ledbetter Fair Pay Act of 2009 amended the statute of limitations for discrimination complaints by have the limitations refresh with every discriminatory paycheck.  The Supreme Court had ruled in Ledbetter v Goodyear Tire & Rubber Co. that discrimination complaints could only be undertaken after the first act had been committed, which spurred Congress to take action and explicitly state that the employee retained the right to sue against continued discrimination.  

The amendment passed the second time through Congress despite the opposition of business interests that cited the possibility of increased lawsuits and lawsuits that could potentially target the employer for actions initiated by past members of management.

Why is there opposition to the Equal Pay Act?

Opposition to this legislation remains, in somewhat muted form, to the idea of an Equal Pay Act.  Similar to opposition to minimum wage measures, business interests claim that enforcing “price floors” on wages would limit the number of employees that can be hired.  This potentially reduces the ability for employers to hire at competitive market wages, due to inflated, federally mandated minimums.  Proponents counter that unlike the four affirmative defenses, the same work entitles the same pay, with gender as a nonfactor if both employees do the same amount of work and are otherwise equal in their function to the economy.

A more recent opposition, related to the Lilly Ledbetter Fair Pay Act is the possibility of enforcing unnecessary liability on commercial enterprises as employees that perceive discrimination can wait almost indefinitely to file a complaint rather than seeking immediate redress in court, the EEOC or within the company’s dispute resolution mechanism.  Many of these interests express a willingness to resolve issues with the employee than resort to strict liability litigation.

This opposition, while noted, is not remotely able to muster a meaningful case against the Equal Pay Act due to its elevating the status of women, which brought the wages of women closer but not equal to that of men.  The Bureau of Labor Statistics noted that women’s wages rose from 62% of men’s earnings to 80% of men’s earnings between 1970 and 2004.  This continued inequality led to the proposal of the Paycheck Fairness Act, which would have disclosed the salary information of coworkers so as to improve the ability of women to make cases of wage discrimination.  This would have also effectively ended affirmative defense four, the “reason other than sex defense.”  The bill did not pass in the Senate and has since been reintroduced for further consideration in April 2011.  Contrasting studies have shown a gender-based pay gap occurring immediately after graduation for female workers, increasing a decade afterward.  The Department of Labor on the other hand concluded in 2007 that women “take jobs that are more family-friendly in terms of benefits rather than wages and that women are more likely to take breaks in employment to care for children or parents.”

Lastly, the business community signaled their opposition to the Paycheck Fairness Act as it imperiled the ability for employees to demand a better salary based on salary history or company policy to attract new hires.  Rather than paying a new employee better than his previous employer, some in the business community charge that they must unfairly take the wage of other employees into consideration.  This impedes the progress of individuals with better salary negotiation skills and history and destroys incentivized hiring.

How do I file suit under the Equal Pay Act?

If you have faced wage or any other impediments to success in the work place based on gender discrimination, you have two years to take the employer to court, starting on the day the discrimination occurred.  This increases to three years if the discrimination was willful on the employer’s part.  The worker with a grievance may proceed directly to court and need not file a charge with the Equal Employment Opportunity Commission.

Additional suits may be filed under the Americans with Disabilities Act and the Age Discrimination in Employment Act.  The time limit for these cases is 180 days.  Additionally, federal employees have specialized counselors for discrimination matters and these employees must seek these counselors within 45 days of the offense.  For litigation involving violations of the Equal Pay Act, there is the assumption of strict liability, which means there is no basis for the employer to qualify his or her intent in engaging in gender discrimination.

You must however examine the four affirmative defenses and determine if the employer can make a case that the gender-wage inequality stems from a relevant factor other than sex.  This can be difficult as the burden of proof is on the accuser to prove the discrimination and the employer may simply make an affirmative defense to escape liability.

The Equal Pay Act of 1963 was a federal law aimed at abolishing wage discrimination in the work force based on gender classifications.  It was signed into law by President John Kennedy on June 10, 1963.  The provisions of the law were imposed to counteract a number of realities in the work force where different wages are paid to employees of the opposite sex where the employees perform substantially the same work, with the same skill and responsibility, and under similar working conditions.

History of Women's employment

Prior to World War II the majority of women worked in the home.  Women were expected to stay at home and maintain the household.  Starting in World War II women began to enter the work force do the enrollment of men in the Armed Forces.  Women began taking positions that were traditionally male jobs.

Women took over position is in industrial factories and became a large member of the work force.  In 1942 the National War Labor Board made a request to the management of the war industry requesting that there be adjustments in the pay of females that would bring them up to par with the salaries of their male counterparts fighting overseas.  For the most part some industries reacted to the request favorably with some manufacturers paying women 100% of the male equivalent.  By 1945 the female share of employment in the United States consisted of nearly 30% women.  On average women were making 60% of what their male counterpart made at the same job.

Following the end of the war women began to be replaced in their positions by servicemen returning from overseas.  By the end of the World War II women began to be forced out of the workforce.  Those positions that were still available to women noticed decreased salaries.  The average salary for women in the post-World War II employment era dropped to between 54% and 60% of the male equivalent.  In newspapers around the country the employment sections were divided into male and female sections; with a growing disparity amongst the pay for women even when the job was essentially the same.

This resulted in women demanding the equal pay that they had received during the World War II period.  Women began striking and in one instance, in 1951, women fought for equal pay after the management of Rheem intended to cut the pay rate of women to 75% of their male equivalent.  After a 3 month holdout a settlement was met where women were offered up to 90% of their male counterparts.  

Impact of the Equal Pay Act of 1963

One year after passing the Equal Pay Act, Congress passed the 1964 Civil Rights Act. Title VII of this act, makes it unlawful to discriminate based on a person’s race, religion, color, or sex.   Title VII attacks sex discrimination more broadly than the Equal Pay Act extending not only to wages but to compensation, terms, conditions or privileges of employment.  With the combination of the Equal Pay Act and Title VII women were guaranteed equal compensation, benefits and other rights associated with employment.

Shultz v. Wheaton Glass Co.

In 1970 the first landmark case involving The Equal Pay Act of 1963 went to the Supreme Court.  The litigation stemmed from employment practices of Wheaton Glass Company.  The company was hiring women workers at wages dramatically lower than their male equivalents.  The argument for the defendant was that the positions were classified under different job titles and, as such, did not pay the same.  Evidence showed that the positions were dramatically similar and that the defendant was subverting the law by employing women under one job title, that paid less, and men under another title.  The Supreme Court, in holding for the plaintiff, ruled that "jobs need to be substantially equal but do not need to be identical" to be protected under The Equal Pay Act.  An employer cannot change job titles for men and women in order to pay women less than men.

Corning Glass v. Brennan

A second case, decided by the Supreme Court in 1974 stemmed from Corning Glass Works payment of higher salaries to nightshift workers at 3 of its plants.  After the Equal Pay Act of 1963 was enacted Corning Glass Co. began paying women, who worked during the day shift, a salary equivalent to that of their male counterparts.  However, in 1969 Corning Glass Works entered into an agreement that would pay night shift workers the same salaries as day shift workers.  The exception to the agreement was that nightshift workers hired prior to 1969 were to receive higher salaries.  The majority of the employees working the night shift at the company were men and as such it was complained that this was a form of de facto discrimination.  

The United States brought suit against Corning Glass Works alleging violations of the Equal Pay Act and Title VII.  In a 5-3 decision the Supreme Court ruled that "equal work should be rewarded by equal wages." The Court went on to declare that Corning had the right to pay nightshift workers more than dayshift workers if there was evidence that showed that the night shift workers deserved a higher salary because of the demands of the job then that would be satisfactory, but Corning failed to meet its burden of proof.

Recent Developments

Since the signing of the Equal Pay Act of 1963 women's place in the employment sector has increased sharply.  Studies have shown that women's salaries have jumped from 62% of men's earnings in 1970 to 80% in 2004.  Currently studies have shown that women make 89 cents for every dollar a man makes.  

A recent piece of legislation, known as the Ledbetter Fair Pay Act was initiated to curb instances of compensation disparity.  In the Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Company a woman found that over the course of her 19 years of employment she had been paid less than her male counterparts.  She filed suit under the Equal Pay Act and Title VII was denied recovery for most of her back salary due to a 180 day statute of limitations.  The Ledbetter Act was subsequently enacted so that the statute of limitations is now renewed with every new discriminatory paycheck.

Although discrimination in the work place is illegal it is difficult to discover.  In 2009 the Obama administration created the Equal Pay Enforcement Task Force.  The object of the task force is to implement guidelines that will require more transparency in employment discrimination.  Some of the goals involved with the Equal Pay Enforcement Task Force are to allow for employees to disclose salary information to co-workers; require employers to show that wage discrepancies are based on genuine job-related business requirements and provide resources to help women develop their negotiating skills.