The Equal Pay Act — What It Is And How It Can Protect You

Photo Credit: Adobe Stock / Jacob Lund

By Jacqueline Hernandez Lewis

READ MORE: Discrimination, Gender equality, Women in the workplace, Equality, Pay gap

Today, more women are the breadwinners for their families than ever before, and yet, the gender pay gap persists. We’re only too well-familiar with the commonly quoted “76 cents to the dollar” stat circulated every equal pay day — however, the reality behind that ratio is actually much worse.

White women may make 76 cents to every white man’s dollar, but Black women make only 60 cents to that dollar and Hispanic women earn just 55 cents. These numbers reflect the uncontrolled, or “raw,” gender pay gap, in which job type and worker seniority aren’t controlled for. But even with these “opportunity gap” variables factored in, it’s still true that women on average earn less than men in the same position. And at this rate, it’s also true that women in the U.S. won’t see equal pay until 2059.

And so, in this year of 2017, the fight for equal pay continues.

Though people know there are laws put in place to protect women employees, what those laws actually are is a mystery to many. One of those laws is the Equal Pay Act of 1963. If you own a business, it’s important to adhere to this law when paying employees for comparable work to prevent pay discrimination. If you’re ever wondered whether your job is paying you enough relative to your male counterpart at work, pay close attention to what follows. And even if you’re not wondering this, it’s still a good idea to be aware of what the Equal Pay Act actually means.

History of the Equal Pay Act

Equal pay issues likely stem all the way back to when women entered the workforce. Back in February 1869, in a letter to the New York Times editor, an author questioned the pay disparity between male and female clerks. The author wrote:

"Very few persons deny the justice of the principle that equal work should command equal pay without regard to the sex of the laborer. But it is one thing to acknowledge the right of a principle and quite another to practice it … An example of justice by our National Government in placing the labor of woman upon equal footing with that of man in the Departments, could not fail to exert a wholesome influence upon individual employers and the country at large.”

The author noted that in some departments, such as Treasury, the wage gap was so bad that women were paid one-half the salary of their male counterparts.

That year, an equal pay law passed the House of Representatives by nearly 100 votes. Unfortunately, it was weakened to only apply to new employees when it reached the Senate in 1870, and enforcement was nonexistent.

During that time, New York led the fight for equal pay. In 1891, it enacted the Grady Bill, which required equal pay for New York City teachers. (It took until 1911, though, for the wage gap for this profession to be fully eliminated.)

It was not, however, until 1963 when a national equal pay law, signed by John F. Kennedy, was passed. That law was the Equal Pay Act of 1963.

The Equal Pay Act of 1963

The Equal Pay Act (EPA) is a law that protects against discrimination in the workplace by requiring that a man and woman employee be paid equal wages for doing equal work in the same establishment. When conducting an EPA analysis, it is important to note that the jobs do not need to be identical, but they must be substantially equal. Substantially equal means that the jobs require substantially similar skill, effort, and responsibility; are performed under similar working conditions; and are within the same establishment. The determination of whether jobs are substantially similar is based on the job content, not title.  

When measuring the similarities of the skill, effort, responsibility, and working conditions, as well as whether it is the same establishment, it is important to keep the following in mind:

Skill is made up of things such as experience, ability, education, and required job training. Substantial skill is based on what skills are required for the job, not the skills of individual employees. Effort is determined by the amount of physical or mental exertion needed to perform the job. It is okay, and legal, to pay an employee who exerts a greater quantity or quality of energy/effort more than those who exert less energy, regardless of whether the lesser-paid employee is a man or woman.

Responsibility is determined by the level of accountability that is required of a job. Work Conditions consist of: (1) physical surroundings like temperature, fumes, and ventilation; and (2) hazards. An Establishment is a unique physical place of business. However, sometimes physically separate places of business are treated as one establishment (if a central business office assigns employees to work sites).

Wage Differentials

Wage differentials are allowed within fair labor practices if based on particular criteria such as rank/tenure, merit, quantity or quality of production, or factors other than sex. These criterion are known as the "affirmative defenses" that employers must prove apply when paying different employee wages. When an employer resolves a pay differential, no employee’s pay may be reduced. The employer therefore has to increase the wages of the lower paid employee.

Equal Pay Act Violations

If an employee feels aggrieved by his/her employer based on an alleged EPA violation, that employee may go directly to court. A charge is not required to be filed with the U.S. Equal Employment Opportunity Commission before going to court. The statute of limitations are the same for both going to court and filing an EPA charge with the Equal Employment Opportunity Commission: within two years of the “alleged unlawful compensation practice,” or within three years in the case of a “willful violation.”

Recent Victories for Equal Pay

The news regarding equal pay is not all bad. There are some happy stories and successes to be told:

1. Massachusetts, Philadelphia, and New York City have banned the practice of employers’ asking for the salary histories of prospective employees. The rationale is that due to unequal pay between men and women, women would be placed at an unfair disadvantage and potentially subjected to wage discrimination if expected to share their respectively lower salary histories with prospective employers. It’s speculated that other states and cities may soon adopt similar anti-discrimination laws, which would be a huge step toward eliminating pay discrimination in the U.S.

2. The three main cast members of the popular CBS TV show “The Big Bang Theory” offered to take a pay cut in order to distribute their shares of salary to two female supporting cast members and help make up for their pay disparity. While this is not a common occurrence, it does set an example of how coworkers can positively impact employers’ decisions regarding pay.

3. The U.S. Hockey women’s team scored a big victory when USA Hockey finally agreed to give them a monthly stipend, travel insurance, and better bonus payouts. This happened because the women’s team threatened to boycott the World Championship until they were given substantially higher pay since the men’s team was paid much higher employee wages. Though negotiations took over a year, the women’s team sent a good message to female athletes and employees around the world. The captain of the women’s team, Meghan Duggan said, "I hope what we did shows young girls, shows anyone, to stick together, stay strong, and fight for what you believe in."

Though much has happened in the fight for equal pay, there is still much work to be done toward achieving true pay equity and paycheck fairness. Women are still severely underpaid, not guaranteed paid maternity leave, and nearly one in four women is harassed at work.

With activism, organizing, and social, cultural, and and policy changes, there will come a time when equal pay is realized and the pay gap is no more. Until then, do not despair. Know your value. Know your worth. And ask for the pay you deserve.

--

Jackie is the owner of her blog Moments of Musing, where she writes about her life as a wife, mom, and more living in New York City. She works with survivors of intimate partner violence.

 

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