All of the federal antidiscrimination laws, including Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), prohibit discrimination in pay. This means, for example, that employers may not pay Latino employees less than their similarly situated white counterparts, or offer lower starting salaries to older employees than to younger ones.
A separate law, the Equal Pay Act (EPA), specifically prohibits sex discrimination in wages. Women facing wage discrimination can bring a lawsuit under the EPA, Title VII, or both; the laws impose slightly different requirements on employers and offer different procedures to employees.
Wage Discrimination Generally
An employer discriminates in wages when it pays similarly situated employees differently based on a protected characteristic. There are many ways this might happen, such as:
- An employer segregates African American employees into its lowest-paying job classification, refusing them opportunities to advance to higher-paying positions.
- An employer pays Muslim employees less than employees who do similar work and are not Muslim.
- An employer has a salary benchmarking study done, but uses it only to raise the salaries of its male employees, not its female employees.
- An employer pays younger employees a higher commission rate per sale than older employees.
To make a claim of wage discrimination, an employee must follow the same procedures as for other discrimination claims. In other words, the employee must first file a charge of discrimination with the Equal Employment Opportunity Commission and receive a right to sue letter before filing a lawsuit. (See Right to Sue Letter From the EEOC for more information on this process.)
Wage Discrimination Based on Sex
An employee who is facing sex-based wage discrimination has rights under both Title VII and the EPA. The EPA requires employers to pay men and women equally for equal work. Although jobs need not be identical to qualify as "equal" under the EPA, they must be pretty darn close. They must require substantially equal skills, effort, and responsibility, and be performed under similar working conditions within the same establishment.
The EPA was passed to address the "wage gap" -- the difference in earnings between men and women, after all other variables are factored out. In 2010, women earned just over 77 cents for every dollar earned by men. Under the EPA, job titles don't matter. For example, an employer may not pay a male "administrative assistant" more than a female "secretary" if they have essentially the same job duties.
There are some important differences between Title VII and the EPA:
- The EPA is stricter. Title VII requires only that women and men who are similarly situated be paid differently; under the EPA, women must be doing work that is nearly identical to the work done by men to prove a violation. Also, only work done under similar working conditions and in the same establishment can be compared under the EPA, which may limit an employee's ability to make a claim.
- The EPA doesn't require a right to sue letter. Employees who want to sue under the EPA can go straight to court. Although they may file a charge of discrimination if they want to, they aren't required to do so.
- The EPA offers different damages. An employee who wins an EPA claim is entitled to back pay (what the employee should have earned less what the employee actually earned). The employee may also be awarded an additional penalty, called liquidated damages, equal to the entire back pay award, unless the employer can show that it acted in good faith and had reasonable grounds to believe that its conduct did not violate the law. Under Title VII, liquidated damages are not available, but employees can be awarded damages for pain and suffering and punitive damages, which aren't available under the EPA.
- The EPA has longer time limits to file a lawsuit. An employee must file a Title VII charge of discrimination within 180 days of the discriminatory act (or 300 days, if there is a state or local law that also prohibits sex-based wage discrimination). Once the employee gets a right to sue letter, she has only 90 days to file a lawsuit. Under the EPA, the employee doesn't have to file a charge with the EEOC, and has two years to file a lawsuit (or three years, if the employer committed a willful violation of the law).
Getting Legal Help
If you believe you have been discriminated against in pay, you should consider speaking to an experienced employment lawyer. A lawyer can assess your situation and let you know whether you have a strong case. A lawyer can negotiate with your employer, gather evidence, and file a charge and/or lawsuit to protect your rights. And, if you are facing sex-based wage discrimination, a lawyer can figure out whether it makes more sense to bring your claims under Title VII, the EPA, or both.
