Equal Pay Law – Questions and Answers

 

April 10, 2018: Happy Equal Pay Day from Gold Star Law!  In furtherance of our mission to help mistreated workers in Metro Detroit and in the spirit of Equal Pay Day, we would like to answer a few questions we regularly get asked about equal pay.  If you’d like more information or have an equal pay concern, contact us!

 

 

What is the Equal Pay Act?

 

The Equal Pay Act of 1963 (or “EPA”) is a United States federal law amending the Fair Labor Standards Act.  The EPA states:

No employer … shall discriminate … between employees on the basis of sex by paying wages to employees … 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…

To win a case under the EPA, an employee must show:

• That she was paid less than employees of the opposite sex;
• That the higher-paid employees perform similar work requiring the same skill, effort, and responsibility;
• That the jobs are performed under similar working conditions; and
• That the difference in pay is not due to seniority, a merit system, a pay system based on quantity or quality of production, or any other factor besides sex.

The EPA does not require that the employee establish discriminatory intent.  This means that you do not have to prove that the person setting pay said anything negative about women, preferred male employees, or had any other gender-related reason for the pay difference.  If you can establish the four elements described above, then the decision-maker’s reasons are not really relevant.

 

 

What about Title VII?

 

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, and national origin.  This would include discriminatory pay practices.  Unlike the EPA, Title VII usually requires that the person making the decision had discriminatory intent (with a few exceptions, such as unnecessary policies that have discriminatory impacts).  This means that an employee usually has to show not just that she was paid less, but that she was paid less because of sex.  However, unlike the EPA, Title VII does not require that the employees being compared have substantially similar work.  Here are some examples:

• A woman and a man both work as accountants. They have similar backgrounds, have been working for the company for the same amount of time, and the work they do is almost the same except that they are assigned different accounts.  The man is paid more than the woman.  This is most likely a violation of the EPA.  If you can show that the man is paid more because he’s a man, this is a violation of Title VII too.
• A woman and a man both work as administrative assistants. They have similar backgrounds, have been working for the company for the same amount of time, and the work they do is almost the same except that they work for different executives.  Those different executives set their pay without any knowledge of other assistants’ pay.  The man is paid more than the woman.  This is most likely a violation of the EPA, because the man is paid more than the woman for substantially similar work and the difference is not based on seniority, merit, quantity or quality of work, or any other objective factor.  However, this is most likely not a violation of Title VII, because the decision to pay the man more than the woman was not based on sex.
• A woman and a man both work as line workers in a factory performing similar work. They are paid the same.  There is a promotion available for a supervisory position.  Even though the woman is more qualified than the man (because she has better qualifications, a better work record, or for some other reason), the man gets the promotion.  When he becomes the supervisor, he has more authority and responsibility than the woman and is paid more than her.  This is not a violation of the EPA, because at no point was the man paid more for substantially similar work.  However, if you can show that the man got the promotion instead of the woman because he’s a man, this is a violation of Title VII.

 

 

What is the Elliott-Larsen Civil Rights Act?

 

The Elliott-Larsen Civil Rights Act of 1976 is a Michigan state law.  Like Title VII, it prohibits discrimination on the basis of sex, race, color, religion, and national origin, and also prohibits discrimination on the basis of age, height, weight, and marital status.  Under Elliott-Larsen, as with Title VII, pay discrimination based on gender (or any other protected status) is illegal.  This includes paying an employee less for similar work because of gender as well as giving someone an opportunity for better pay, such as a promotion, favorable shift, or other benefit, because of gender.

Why does the Elliott-Larsen matter if we already have Title VII?

Title VII only applies to employers with 15 or more employees.  Many Michigan employees work for small companies who would not be covered by Title VII and would thus not be entitled to Title VII’s protections against discrimination.  If your Michigan employer has 2 or more employees, you are protected from discriminatory employment practices by Elliott-Larsen, even if your employer is not covered by Title VII.

Additionally, to file a lawsuit under Title VII, you must first file a charge with the Equal Employment Opportunity Commission.  This charge must be filed within 300 days of the discriminatory action at issue- and in some situations, you may have even less time than that!  Once the Equal Employment Opportunity Commission process is complete, the agency usually issues a notice called a “Right to Sue” letter, and an employee only has 90 days from the date of receiving that letter to file a lawsuit.

However, under Elliott-Larsen, an employee usually has three years to file a lawsuit.  Many employees with discrimination claims work for companies with more than 15 employees, but miss the 300-day deadline to file a charge with the Equal Employment Opportunity Commission.  There are also many employees who do file a charge with the Equal Employment Opportunity Commission within the 300-day deadline, but then do not get their lawsuit filed with 90 days of receiving the “Right to Sue” letter.  For these employees, it may be too late to file a claim under Title VII, but they can still file a lawsuit in state court under the Elliott-Larsen Civil Rights Act.

 

 

What is the Equal Rights Amendment?

 

The Equal Rights Amendment is a proposed amendment to the United States Constitution.  It is not currently the law, as it has not been ratified and has thus not yet been added to the Constitution.  It was originally proposed in 1923 with the purpose of guaranteeing equal rights between men and women with respect to divorce, property, employment, and all other legal matters.  The text of the proposed Equal Rights Amendment is as follows:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification

In order to be ratified and added to the United States Constitution, an amendment must pass both houses of Congress with 2/3 of the vote.  The amendment is then sent to the states, and must be approved by 3/4ths of those state legislatures.  The Equal Rights Amendment was passed by Congress in 1972 and sent to the states for ratification with a deadline of March, 1979.  However, only 35 states approved the amendment, and in order to be added to the United States Constitution 38 states (3/4ths of the 50 states) had to approve the amendment.  The deadline was extended to 1982, but no more states ratified the amendment.

The Equal Rights Amendment has been reintroduced in every session of Congress since 1982, but has not passed Congress since 1972.

 

 

What should I do if I’m not receiving equal pay?

If you believe that you are receiving less than equal pay because of your gender or any other protected status (such as race, color, religion, national origin, age, height, weight, or marital status), you could contact an equal pay attorney or employment law firm that handles equal pay cases, such as Gold Star Law.  There are many factors that need to be fully evaluated to determine whether you have a valid claim under the Equal Pay Act, Title VII, Elliott-Larsen, or any other law that would cover unfair pay practices.  When you sit down with one of our employment law attorneys, we will discuss your situation at length and all of the factors that may strengthen or weaken your equal pay claim, such as:

• What other employees in your company perform similar work, and what are they paid?
• What sex (or race, color, religion, national origin, age, height, weight or marital status) are the employees who are paid more than you for similar work?
• What reasons besides sex (or race, color, religion, etc.) would those employees be paid more than you?
  • How long have they been there?
  • What kind of education do they have?
  • How is the quality of their work?
  • What is their performance or disciplinary history with the company?
  • Do they have any additional skills or abilities?
• Has anyone else been given an opportunity for increased pay, such as a raise or favorable work assignment, that you were not given? If so, was that because of sex (or race, color, religion, etc.)?
  • What reason did the employer give for giving someone else an opportunity over you?
  • Is that person more qualified in any way?
  • Is there any reason you were not qualified for the opportunity?
• Has the employer ever said or done something that may show discriminatory intent?
  • Has the employer ever made comments about an employee’s sex, particularly as it relates to job performance?
  • Does the employer have a pattern of treating employees better or worse based on sex (or race, color, religion, etc.)?
• Have you made a complaint about discriminatory pay practices?
  • What did you say?
  • How did the employer respond?
  • Did the employer take any action against you because you complained? (This is called retaliation, and it is illegal.)

When you meet with a Gold Star Law employment lawyer, we will go over all of this and more.  Our employment attorneys will discuss your situation at length, analyze which employment laws best apply to your potential case, and discuss your options with you.  We will discuss the best course of action to move forward with your employment lawsuit.  For some people, the best option may be to start with the Equal Employment Opportunity Commission.  Our discrimination lawyers will help you initiate the EEOC process and communicate with the agency on your behalf so that your claim is properly handled at all stages.  In other situations, the best course of action is to file a lawsuit right away.  In those cases, our employment lawyers prepare the court documents, review them with you, file the lawsuit, and represent you through every step of your case.

As stated above, some of these laws give you a short period of time to take action.  If you wait too long you could miss your opportunity to recover the equal pay you are owed.  The sooner you take action, the sooner your employment law attorney can advise you and help you start your case.  If you have any questions or would like to speak to an employment lawyer, contact Gold Star Law.