The a huge advancement in their mission when The

The Creation and Effects
 of the Equal Pay Act

In a perfect world matters
such as discrimination and harassment would not occur in any plane of
existence. However, the world as it is today is far from flawless. This world
also includes the American society. The changes in society are constantly
fueling the demand for equality and fair treatment. American women today are
fighting different battles than their earlier generations. American women in
general no longer have to fight for the right to take birth control, to vote
for whom they want to see in office, or for safe work environments.  The demand for women to be treated as equals
in an employment aspect is still on the top of the list. Women have desired to
be paid the same wages as their male counterparts for centuries. Throughout
history, women in the U.S have made many strides forward in their battle for
equality and the Equal Pay Act is one of their many accomplishments.

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Such events as the Triangle
Shirtwaist Factory Fire (Encyclopædia Britannica, Inc.,
2011)
and Muller v State of Oregon, 208 U.S. 412 (1908) (Skelton) are reminders of
women’s battles for equality in the workplace. The Equal Pay Act, or EPA, was a
stepping stone resulting from the desire for women to progress further in
society rather than their assigned roles and requirements. Almost 43 years
prior to EPA, women made a huge advancement in their mission when The Women’s
Bureau was formed. (Women’s
Bureau, n.d.)

Previously known as the Women
in Industry Service (Encyclopædia Britannica, Inc.,
2011),
the Women’s Bureau was created in 1920 after a bill was passed by congress
establishing the group as part of the Department of Labor by Public Law No. 259 (Women’s
Bureau, n.d.).
The Bureau’s duty “formulate standards and policies which shall promote the
welfare of wage-earning women, improve their working conditions, increase their
efficiency, and advance their opportunities for profitable employment.” Their
mission statement declares “Women in the workforce are vital to the nation’s
economic security. The Women’s Bureau develops policies and standards and
conducts inquiries to safeguard the interests of working women; to advocate for
their equality and economic security for themselves and their families; and to
promote quality work environments.” (Women’s
Bureau, n.d.)

The development of this bureau
played essential part of change in the discrimination of women’s wages. (Manzano-Diaz,
n.d.)
The Equal Pay Act was an amendment to the Fair Labor Standards Act (1938), FLSA,
which was protected under the United States Department of Labor. (U.S. Equal Employment Opportunity Commission). However, the
creation of this act did not come swiftly or without a fight. The EPA went
through almost 18 years of attempts, failures, modifications, and
reintroductions before finally passing. The first attempt was when Congress
introduced the Women’s Equal Pay Act in 1945 after huge increase in the
presence of women in the workplace during World War II. (National Park
Service)
Women went from consisting of a merely 24% of the workforce to 37%.

Unions began pushing for women
to have larger and more equal wages. Though the idea is admirable, it was not
without motives. While more and more men left for the war, their jobs were left
vacant. Women began filling these jobs at much lower wages. The fear was that
the new inexpensive labor provided by female employees would ultimately
substitute the male employees or ultimately lower their wages. Due to these
concerns, the National War Labor Board pushed for women to receive equal pay
for work considered “comparable quality and quantity.” (National Park
Service).
The bill ultimately failed and after the war women’s presence in the workplace
dropped over 10% and were replaced by the men returning from the war.

The 1950’s were a time of
economic growth, and regardless of their treatment after the war, women were
encouraged to work. Throughout the 1950’s several versions of the EPA were
presented and continually denied. At the start of the 1960’s women were making
up 38% of the U.S. workforce. Women’s wages remained lower than men’s while
society still allowed women to only work certain jobs and preferred only part
time employment. (Striking Women). The head of the
Women’s Bureau, Esther Peterson, urged President John F. Kennedy to form the Presidential
Commission on the Status of Women. After much effort and an enormous amount of
research and data collecting, Peterson formed the draft that would change
everything in the attempt to change the wage gap. (National Park
Service)
(Manzano-Diaz,
n.d.)

On June 10th, 1963,
John F, Kennedy signed the United States labor law known as the Equal Pay Act.
The EPA is an amendment to the Fair Labor Standards Act of 1938 which is
enforced by the United States Department of Labor. While this was part of
J.F.K’s larger efforts to “take affirmative action to ensure that applicants
are employed without regard to their race, creed, color, or national origin” (MacLaury,
2010)
, it was a huge win for women in the workforce. However, their battle against
discrimination still continues.

The Equal Pay Act of 1963

What
did the passing of EPA truly detail for women and what should they expect?  Congress’s approval of EPA forbids “sex-based wage discrimination between
men and women in the same establishment who perform jobs that require
substantially equal skill, effort and responsibility under similar working
conditions.” (U.S. Equal Employment Opportunity Commission) This prohibits the “depresses
wages and living standards for employees necessary for their health and efficiency;
prevents the maximum utilization of the available labor resources; tends to
cause labor disputes, thereby burdening, affecting, and obstructing commerce, burdens
commerce and the free flow of goods in commerce, and constitutes an unfair
method of competition.” (Equal Employment Opportunity Commission, n.d.) Congress declared in the EPA’s “Declaration
of Purpose,” this type of discrimination: “Depresses
wages and living standards for employees necessary for their health and
efficiency;’ Prevents maximum utilization of the available labor resources and
tends to cause labor disputes, thereby burdening, affecting, and obstructing
commerce; and Constitutes an unfair method of competition.” (The U.S. Equal
Employment Opportunity Commission, 2003)

While
the EPA was an amendment to the FLSA, it is no longer enforced by the United
States Department of Labor. During President Carter’s administration in 1977,
the federal government went through some restructuring. (Eyraud, 1993) The EPA was then
transferred from the jurisdiction
enforced by DOL to the U.S.  Equal
Employment Opportunity Commission. EEOC, was formed in in 1964 by Congress with
the creation of the Civil Rights Act of 1964 to prohibit discrimination in the
work place. (Chapter 2 U.S. Equal Employment Opportunity Commission).. The EPA is the
oldest workplace civil rights law enforced by the EEOC and is older than the
commission itself.

The
EEOC  enforces a numerous amount of laws
such as the Age Discrimination in Employment Act of 1967 (ADEA), Title I of the
Americans with Disabilities Act of 1990 (ADA), Sections 501 and 505 of the
Rehabilitation Act of 1973, and Title VII of the Civil Rights Act of 1964
(Title VII) and its various amendments. Title
VII also makes it illegal to discriminate based on sex in pay and benefits.
Therefore, someone who has an Equal Pay Act claim may also have a claim under
Title VII. (U.S. Equal Employment Opportunity Commission)

Required Elements

In 2016 the EEOC received 1,075 equal wage
discrimination complaints. However, 772 or 64% of complaints received by the
EEOC were ruled to have “no reasonable cause” for their case. (Equal Pay Act
Charges (Charges filed with EEOC)) What do plaintiffs
need to prove that they have been discriminated against? In order for a victim
to have a solid case they must conclude their employer has violated the EPA. “Thus,
to establish a prima facie case under the Equal Pay Act, a plaintiff must show:
(1) that his or her employer is subject to the Act; (2) that he or she
performed work in a position requiring equal skill, effort, and responsibility
under similar working conditions; and (3) that he or she was paid less than the
employees of the opposite sex providing the comparison.” (Carey, Equal
Pay Discrimination, 2011) Some others components that would
improve their case is not receiving equal employee pensions , insurance
coverage, profit sharing, vacation time, bonuses,  and right to use to company equipment based
on their gender. While the EPA was originally intended to safeguard women, it
does defend both genders from being discriminated against. (Tipton, 2017)

Employees who believe they are victims of gender wage
discrimination should keep in mind a few essential factors. First, EPA allows
for wage variances when individuals are assessed based on conditions such as seniority,
production levels, and value to their position. Secondly, victims will have to
take on the affliction of providing evidence verifying they have been given inadequate
wages based on the discrimination solely on their gender. Other types of
discrimination might fall under different acts and laws or are protected by
varying federal agencies.

How can an employer defend
themselves against accusations of violating the EPA? If there’s a dissimilarity
in pay, an employer must prove that it’s warranted by: a seniority system, a
merit system, a pay system based on quantity or quality of output, any other
factor other than sex. (Moran, 2016) Debra Lawrence, a
regional attorney in the EEOC Philadelphia District Office, says “the first
three factors are pretty straightforward, that last “catch-all” category is
where employers get creative.” Lawrence continues stating in her interview with
Moran, that “Equal Pay Act intent-neutral. In other words,
it doesn’t matter whether you meant to pay an employee less because of
gender—the fact that you did it is enough. Once the disparity is established,
the burden of proof that the reason was a legitimate one is on the employer,
who should be able to show that any policy that resulted in disproportionate
pay is in place throughout the organization.” (Moran, 2016)

Can employers prevent wage
discrepancies based on gender discrimination? To prevent gender pay gap,
employers can take precautions such as “conducting equal pay audits with
transparent results and methodology, increasing transparency about pay, banning
the use of salary history and negotiation to set compensation, and moving
towards clearer compensation metrics for staff.” (Carey, Why
Won’t Men Pay Women More?, 2017)

EPA’s filling process. There are some major considerations a plaintiff must consider before
filling a claim of gender discrimination resulting in unfair wages. First, the
complainant must contemplate which act to fill with the EEOC. EPA only
prohibits wage discrimination based solely gender compared to Title VII’s
coverage of all employment discrimination. (AAUW) Therefore, someone
who has an Equal Pay Act claim may also have a claim under Title VII. However,
the EPA, Title VII, the ADEA, or the ADA does not require jobs be substantially
equal. (U.S. Equal Employment Opportunity
Commission).
In regards to the statute of limitations of filing a claim, The Lilly Ledbetter
Fair Pay Act (2009) ensures plaintiffs have up to 180 days after the most
recent paycheck that reflects unequal wages to file a charge with the EEOC. (United States Women’s Bureau , 2012) In an article for
the Virginia Lawyer Magazine written
by Broderick Dunn, Dunn explains” The Service Employees International Union
said the Act “strengthens the rights of women and all workers to pursuer
justice for wage discrimination on the basis of sex, race, color, religion,
nation origin, age, or disability.”” (Dunn, 2009)

Another entity to consider, recommend
by the American Association of University Women (AAUW), are the advantages and
disadvantages of filing under each act. (AAUW) In an online article
“Equal Pay and Discrimination against Women” by FindLaw, they describe “Factors in favor of filing under the EPA:
(i) no need to wait to file a complaint with the EEOC; (ii) if you work for a
company with fewer than 15 employees you can sue under the EPA; (iii) EPA
claims, unlike Title VII claims, do not need to prove the discrimination was
intentional. Proving intent is difficult and makes EPA claims easier to win in
court. ;( iv) longer statute of limitations–two or three years (depending on
whether the discrimination was willful or not) for EPA claims and 180 days for
Title VII claims” whereas “Factors in favor of filing under Title VII: (i) the
biggest advantage is you can win more money–not only can you recover lost
wages, but you can seek money for pain and suffering.”

Once all issues and concerns
have been weighted out and the choice to rely on the EPA, the victim may then file
a claim with EEOC or directly file a lawsuit. The AAUW also recommends: “(1) Record
the discriminatory pay practices you believe are taking place. Keep copies of
your salary records and pay stubs. (2)Talk to your employer. Your company may
have an Equal Employment Opportunity Officer or another way for you to file a
complaint. For instance, some companies offer mediation or other tools to
resolve problems. Check your employee handbook for procedures. (3)Keep doing a
good job and keep a record of your work. Keep copies at home of your job
evaluations and any letters or memos that show that you do a good job at work.
(4)Seek support from friends and family. Discrimination at work is a difficult
thing to face alone, and the process of fighting discrimination can be very
stressful.” (AAUW)

Previous Cases and Remedies. Once the victim has
provided all three essential elements needed to establish a prima facie case,
the evaluating of the situation begins. The employer must then prove one of the four
affirmative defense. In Carey’s article, “Equal Pay Discrimination” he explains
that in order for the employer “To rebut the prima facie case, an employer has
several affirmative defenses under FEPA, including that the discrepancy
resulted from a pay system based on: (1) seniority; (2) merit; (3) quantity or
quality of production; or (4) another differential based on a factor other than
sex.” (Carey, Equal Pay
Discrimination, 2011)

In regards to defense of seniority, the defendant
must prove the demonstration of a bona fide seniority system must be verified.  The employer would have to have regularly
considered seniority instead of simply a case-by-case basis and consistent in
the decisions. Wage differences constructed on a bona fide
seniority system do not infringe the EPA an example of successful defense would
be Strag v. Board of Trustees. ( Instructions For Sex
Discrimination Claims Under the Equal Pay Act, 2014). Thurza Strag
initiated an action against Appellee, Craven Community College alleging that
the substantial discrepancy between her salary and that of Linwood Swain was
based on gender differences, and thus violated of the Equal Pay Act. The
College’s salary plan for instructors
was based on a scale which was formulated in regards base salary, educational
status, and years of work experience. While both instructors were hired at the
same time and both possessed the same level of education, Swain had twenty-four
years of teaching experience while Strag only had nine years. The ruling was in
favor of the defendant since the pay scale applied to both men and women, not
just men. ( STRAG v. BOARD OF
TRUSTEES, 1995)

.

Employer’s Liability.

The
majority of employment litigation pertains to discrimination claims. Under
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act,
and the Americans with Disabilities Act, only the employer has liability. The
perceived individual wrongdoer cannot be sued and is not liable for any damages
under these laws, even if he or she behaved with intentional malice. However,
the previous protections from personal liability are now being eclipsed by a
variety of personal liability causes of action. Under the Equal Pay Act One may
name individuals personally as defendants and collect damages from them under
several laws. (GREGG, 2013)