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Cheri L. Cannon, Esq. Tully Rinckey PLLC

815 Connecticut Avenue NW, Suite 700

Washington, D.C. 20006

202-787-1900 ccannon@fedattorney.com

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 info@fedattorney.com 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 ccannon@fedattorney.com

Questions?