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Equal Pay Day 2018: Equal Pay Act Update

Posted by Giovanna A. D'Orazio | Apr 10, 2018

Today, April 10, 2018, is Equal Pay Day: the date in 2018 the average woman must work until in order to earn the same amount that a male counterpart earned in 2017.  When we say “counterpart” we mean an employee with substantially equal skill, education and experience doing relatively the same work in a similar location.  On average, women make 20% less than men – and black and Latina women earn even less. 

The Equal Pay Act is an amendment to the Fair Labor Standards Act, the federal statutory scheme that applies to the payment of employee wages, among other things.  It reads as follows:

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.

29 U.S.C. 206(d)(1).

While this provision purports to ensure equal pay for equal work, notice the big “except”.  And one of the exceptions is quite vague: “a differential based on any other factor other than sex.”  Well, that seems like it can cover a whole host of excuses when, in reality, the real reason for the pay disparity is discrimination.  And, in practice, that's what happens.  It's also not as easy as you might think to establish that workers are performing substantially equal jobs. 

One “factor other than sex” courts have been dealing with is a woman's salary at a prior place of employment.  Can that salary be used as a justification to pay a woman less than male counterparts at a new place of employment?  Yesterday, the Ninth Circuit Court of Appeals, sitting en banc (meaning the entire 11-judge panel), held NO: prior salary is not a justification under the Equal Pay Act, in a win for women.  Why is that important? Because if women are historically earning less than men, taking a prior (potentially discriminatory and low) salary into consideration just perpetuates the employee's inability to earn as much as similarly situated male employees.

New York has its own equal pay law that appears in the Labor Law.  A couple of years ago, it was strengthened to remove some of the “excuses” employers could use to justify wage disparity.  Another one of the changes prohibits employers from preventing employees from discussing salary information – because how is someone supposed to know they are being paid less than others or unfairly if employees aren't allowed to share salary information?  Legislation has also been introduced to prohibit questions about prior salary from being asked in an interview to address the problem the Ninth Circuit just dealt with. New York City, which has its own human rights law, has passed a salary-history-question-ban.  

Both the federal and state equal pay laws also have anti-retaliation provisions, meaning employers aren't allowed to take adverse employment action against you for complaining that your rights are being violated.

In addition to the equal pay laws, Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law prohibit discrimination on the basis of sex, which includes in the payment of wages, as well as retaliation for making complaints.  If you feel you are being paid unfairly or have been retaliated against for making a complaint, give us a call.  We are happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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