Although the Equal Pay Act has been in effect since 1963, a pay gap continues. A GAO study released in October 2011 estimated that "in 2010, less-educated women earned 86 cents—compared with 81 cents in 2000—for every dollar men earned, after adjusting for available factors that may affect pay." Commentators continue to decry the gap. Witness this recent post by Congresswoman Jackie Speier.
The substantive provisions of the Act appear in 29 U.S.C. section 206(d), which states:
"No employer having employees subject to any provisions of this section 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: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."
The Equal Pay Act regulations promulgated by the EEOC elaborate on those provisions.
Unlike similar sex discrimination claims under Title VII, there is no exhaustion requirement. Claimants may file their claims in court without first going to the EEOC. California has its own Equal Pay Act, found in Labor Code section 1197.5, which is substantially the same as the federal one. California courts rely on federal precedent to interpret the statute. Green v. Par Pools Inc., 111 Cal.App.4th 620, 3 Cal.Rptr.3d 844 (2003). As is the case with the federal statute, there is no exhaustion requirement.
The Ninth Circuit applied the Equal Pay Act in an action by the USC women's basketball coach, who was paid less than the men's basketball coach. Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999). Summary judgment for the university was affirmed: "Stanley [the women's coach] had far less relevant experience and qualifications than Raveling [the men's coach]. She had fourteen years less experience as a basketball coach. She, unlike Raveling, never coached the Olympic team. She had no marketing experience outside coaching. She had never written any books on basketball.
Whether an employee's rate of pay is less than the rate paid to another employee is not always a mathematical calculation. If the work is equal the pay must be in the same form.
Example 16 from the EEOC's Compliance Manual section on compensation discrimination explains this as follows: A male tennis instructor and a female tennis instructor at a particular health club provide tennis lessons that are substantially equal. The male instructor is paid a weekly salary, but the female instructor is paid by the lesson. Even if the two instructors receive essentially the same pay per week, there is a violation because the male and female are not paid in the same form for substantially equal work.
Other examples from the Compliance Manual explain other concepts under the Equal Pay Act:
Two of them illustrate how to determine whether a pay differential between work sites is a factor other than sex:
Example 17: CP [complaining party], a school teacher, alleges that she is paid less than a male teacher who performs equal work in the same school district. The school district asserts that their compensation cannot be compared under the EPA because they work in different schools. The investigation determines that the school district is a single establishment because hiring, assignments of teachers, and compensation rates are determined centrally, and personnel are sometimes reassigned to different schools. Therefore, the compensation rates of the two teachers can be compared.
Example 18: CP, a female, works for a computer services firm that has offices in numerous cities. She alleges that she is paid less than a male who performs the same job in a different branch office. The employer claims that the separate offices are separate establishments and that, therefore, the compensation rates in each office cannot be compared. The evidence shows that while the headquarters of the company exercises some control over the branches, the specific salaries offered to job applicants are determined by supervisors in each local office. The local offices therefore constitute separate establishments, and CP's salary cannot be compared to the salary of an employee in a different office.
Several of the examples explain what constitutes equal work:
Example 21: CP, a hotel clerk, alleges that she is paid less than a male who performs substantially equal work. CP only has a high school degree, while the male comparator has a college degree. However, performance of the two jobs requires the same education, ability, experience, and training. A college degree is not needed to perform either job. Therefore, the skill required to perform the two jobs is substantially equal.
Example 22: CP, a male, works for a telephone company diagnosing problems with customer lines. He alleges that he is paid less than his female predecessor in violation of the EPA. The evidence shows that the job of CP's predecessor required expert training in diagnostic techniques and a high degree of specialized computer skill. The respondent switched to a newer, more advanced computer testing system after CP's predecessor resigned. The job now requires much less overall skill, including computer skill, than was required when CP's predecessor held it. Therefore, the skill is not equal, and no violation is found.
Example 24: CP alleges that she and other female grocery store workers are paid less than males who perform substantially equal work. Most of the tasks performed by the males and females are the same. In addition to those same tasks, the male employees place heavy items on the store shelves, while the female employees arrange displays of small items. The extra task performed by the men requires greater physical effort, but the extra task performed by the women is more repetitive, making the amount of effort required to perform the jobs substantially the same.
Example 30: CP, a bank teller, alleges that she is paid less than a male bank teller who performs the same job. The respondent claims that the compensation disparity is justified because wages are paid under a merit system. That alleged merit system is unstructured, based on a manager's "gut feeling." Furthermore, the respondent offers no objective evidence to support CP's lower compensation under its merit system. In this case, the merit system is not bona fide and does not justify the compensation disparity.
Example 32: CP, a high school teacher, alleges that she is paid $5,000 less than a male teacher who performs substantially equal work. The respondent states that the compensation difference is due to its seniority system and that the male teacher has greater seniority. The investigation reveals that the male has worked at the school three years longer than CP, which would only justify a $3,000 difference in pay under the seniority system. An EPA violation is found.
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