Equal Pay Act

The Equal Pay Act (EPA) is a federal employment law that prohibits sex-based compensation discrimination and mandates that men and women in the same workplace doing substantially equal jobs be given equal pay. The nature of the work—the skills, effort, responsibilities, and working conditions—rather than the job title determines whether the jobs will be considered substantially equal. The EPA is part of the Fair Labor Standards Act of 1938 as amended, which is administered and enforced by the Equal Employment Opportunity Commission (EEOC).

“Equal pay” covers not just salary but any form of compensation, including overtime pay, bonuses, profit sharing options, stock options, life insurance and health insurance benefits, travel reimbursements, and vacation and holiday pay. People with EPA claims may also have a claim for sex discrimination under Title VII.

Unlike some other anti-discrimination claims, individuals alleging that their employer violated EPA can sue in court without first filing a charge with the EEOC. If you want to file an EPA claim, you must either file in court or with the EEOC within two years of the compensation practice you allege was unlawful. If the violation is willful, you have three years from the time of the practice. Filing with the EEOC will not extend your time to file a lawsuit.

Skills, Effort, Responsibilities, and Working Conditions

One of the factors that controls whether two jobs are considered equal is whether they require the same skills. Skills include not just ability but also experience, education, and training. The relevant inquiry is what skills are required for a particular job, not the skills that individual employees may bring to the role. For example, two graphic design jobs could be considered equal under EPA even if the male candidate has only a Bachelor of Fine Arts and the female candidate also has a Master’s degree in design.  

Another factor is the amount of effort needed for the job. “Effort” means physical or mental exertion. For example, if there are two design jobs, and one job requires the designer to routinely copy and paste into a preset template, while the other requires weekly original designs, the second job requires more mental exertion and effort. It would be fair under EPA to pay the second person more.

The third factor in determining whether two jobs the same are the degrees of responsibility and accountability. A designer who has managerial duties, for example, has more responsibility than a designer without managerial duties.

Working conditions can also affect your rights under EPA. They include not only the physical surroundings, like the temperature or the ventilation, but also any potential hazards. Two jobs may not be equal if one includes a duty that entails more risk than the other. For example, if two people work on an assembly line, but one has to finish the product with a toxic chemical, it may be fair to pay the person dealing with the toxic chemical more.

When Are Pay Differentials Permitted?

Different pay is permitted in the context of seniority, quantity or quality of production, merit, or some other factor than sex. Raising this affirmative defense can be problematic in some instances, such as creative jobs when the employer’s assessment that one person is more talented is at least partially subjective. The burden is on the employer to prove this affirmative defense. If there is inequality in pay between male and female workers, employers are not permitted to reduce the wages of the higher-paid gender to equalize the pay. Instead, the employer must increase the wages of the lower-paid gender.