Equal Pay Act Frequently Asked Questions

What does the Equal Pay Act say?
What is the difference between the Equal Pay Act and Title VII ?
Why you might file under the Equal Pay Act instead of Title VII?
What does an employee need to prove under the Equal Pay Act?
What remedies do I have under the Equal Pay Act
What will the EEOC do after I have filed a charge of discrimination?
What relief is available if there is a finding of sex discrimination by the court?
What cases provide more information about Title VII?

What does the Equal Pay Act say?

The EPA states: “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: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.” Back to Top


What is the difference between the Equal Pay Act and Title VII?

Title VII of the Civil Rights Act was passed in 1964, a year after the EPA. Title VII states, in part:

It shall be unlawful employment practice for an employer to discriminate “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e)

Thus, while EPA only prohibits wage discrimination based on sex, Title VII bars all discrimination in employment (including hiring, firing, promotion, etc. as well as wage) on the basis of race, color, religion, or national origin in addition to sex. Back to Top


Why might you file under the Equal Pay Act instead of Title VII?

Individuals experiencing sex-based pay inequity may file under Title VII or the EPA. Filing under the EPA may be advantageous because:

  • You can file a lawsuit under the EPA without first filing a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). Under Title VII, you must file a complaint with the EEOC and the EEOC must issue you a “Right to Sue” letter before you can file a lawsuit in federal court.
  • The EPA has a longer statute of limitations than Title VII. EPA wage discrimination claims must be brought within two years of the first act of discrimination, however the statute of limitations is extended to three years if the employer’s EPA violation is willful/intentional.
  • If you work for an employer with fewer than 15 employees, you fall outside of Title VII’s requirements but you can still file under the EPA.
  • Under the EPA, you can collect liquidated damages – double back pay can be awarded as liquidated damages unless the employer can show that wage discrimination was in good faith.

HOWEVER, there are also disadvantages to filing under the EPA. For example, under the EPA, you cannot collect punitive damages such as pain and suffering. Also, unlike the EPA, Title VII does not require that the claimant’s job be substantially equal to that of a higher paid person of the opposite sex or require the claimant to work in the same establishment.

Many people file claims under both the EPA and Title VII in order to preserve their sex discrimination claims under both laws. Back to Top


What does an employee need to prove under the Equal Pay Act?

An employee needs to show that a man and a woman working in the same place and doing equal jobs are receiving unequal pay. It is the employee/plaintiff’s burden to establish a prima facie case. To do this, she must show:

  • same establishment;
  • unequal pay;
  • on the basis of sex; and
  • equal work.

The jobs do not have to be identical; they must just be substantially equal. Job content (what duties are actually being performed), not job title determines whether the jobs are substantially equal. (Schultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970))

Two jobs are equal for the purpose of the EPA when both require equal levels of skill, effort, and responsibility and are performed under similar working conditions within the same establishment.

  • Skill
    Measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have.
  • Effort
    The amount of physical or mental exertion needed to perform the job.
  • Responsibility
    The degree of accountability required in performing the job.
  • Working Conditions
    This encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.
  • Establishment
    The prohibition against compensation discrimination under the EPA applies only to jobs within any establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. However, in some circumstances, physically separate places of business should be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to work locations, the separate work sites can be considered part of one establishment.(http://www.eeoc.gov/facts/fs-epa.html)

Importantly, a woman pursuing a claim under the EPA must have an actual male comparator, not a hypothetical or composite male.

Once the prima facie case has been established, the burden shifts to the employer/defendant, who can justify the pay differential under one (or more) affirmative defenses:

  • seniority systems;
  • merit systems;
  • systems which measure earnings by quantity or quality of production; and
  • a differential based on any factor other than sex.

The affirmative defenses have been interpreted differently, by different appellate courts. The fourth defense in particular has received varying treatment by judges. The fourth affirmative defense “is a broad catch-all exception [that] embraces an almost limitless number of factors, so long as they do not involve sex.” (Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989)) Some circuits have read the factor “any other factor other than sex” to mean that it is any other factor which also has a legitimate business need. (Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520 (2nd Cir. 1992)) (where the court held that an employer cannot justify a pay differential, between cleaners, who are all female, and custodians based on a civil service test and a classification system in they are not business-related factors other than sex); EEOC v. J.C. Penney Co., Inc., 843 F.2d 249 (6th Cir. 1988) (where the court upheld an employer’s wage differential based on a “head of household” clause, which provided spousal health insurance only to spouses who earned less than the employee, as a business-related factor other than sex); Glenn v. General Motors, 841 F.2d 1567 (11th Cir. 1988) (where the court found that a market force theory contending that the force of supply and demand in the market required employers to pay men higher wages than women was not a valid business-related factor other than sex); Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982) (where the court finds that use of prior salaries to set wages that resulted in women earning less than men could be considered a valid business-related factor other than sex)) Other circuits do not require an employer to justify a wage differential by setting forth a business related factor other than sex, they read the factor “any other factor other than sex” to mean simply any other factor. (Fallon v. Illinois, (in a case where women claimed discrimination because only wartime veterans were eligible for Veterans Service Officer positions, the court held that an employer can justify a pay differential by merely showing that the factor other than sex is gender neutral);) Strecker v. Grand Forks County Social Serv. Bd., 640 F.2d 96 (8th Cir. 1980) (the court found that it did not need to consider whether a classification system, which took into account plaintiff’s lower education and experience level, was business-related because there were gender neutral criterion)) Back to Top


What remedies do I have under the Equal Pay Act?

Unlike Title VII, you do not need to file a claim with the EEOC before filing a complaint in federal court, therefore, there is no time deadlines for filing with the EEOC. However, because EPA claims generally raise Title VII claims as well, it is best to file a claim with the EEOC under both laws with in the 180 day deadline required for Title VII claims in order to preserve your rights to the fullest extent.

It is important to be aware of the statue of limitations on bringing an EPA suit in court. Cases must be filed with in two years for non-willful violations of the EPA and with in three years for willful violations of the EPA. Back to Top


What will the EEOC do after I have filed a charge of discrimination?

The employer will be notified that a charge of discrimination has been filed and the EEOC will begin an investigation. The EEOC may attempt to settle the charge of discrimination or may refer the charge to its mediation program, which is a voluntary, confidential process requiring the consent of both parties. If the EEOC is unable to reach a settlement agreement, and it is a private employer, the EEOC may file a lawsuit in federal court. If the employer is a public employer, the EEOC will refer the matter for litigation to the Employment Litigation Section of the Civil Rights Division at the U.S. Department of Justice.

The EEOC may also choose to dismiss the charge. With an EPA claim, you do not need to wait for a right to sue notice from the EEOC. You may initiate a lawsuit at any time with in the two years following the violation of the EPA. Back to Top


What relief is available if there is a finding of sex discrimination by the court?

If there is a finding of sex discrimination, relief is intended to make the individual “whole” – in other words, to put the individual in the place she or he would have been had the discrimination not occurred. In the case of the EPA damages may include back pay and ‘liquidated damages’, an additional amount equal to the back pay awarded. Compensatory and punitive damages are not available under the EPA. Back to Top


What cases provide more information about Title VII?

Key Court Cases


Corning Glass Works v. Brennan, 417 U.S. 188 (1974)

The Court ruled that employers cannot justify paying women lower wages because that is what they traditionally received under the “going market rate.” A wage differential occurring “simply because men would not work at the low rates paid women” was unacceptable. The Court adopted a burden-shifting analysis analogous to the McDonnell Douglas scheme employed in Title VII cases.

Schultz v. Wheaton Glass Co., 421 F.2d 259 (1970)
The Third Circuit ruled that jobs need to be substantially equal but not identical to fall under the protection of the EPA. An employer cannot, for example, change the job titles of women workers in order to pay them less than men. Back to Top

Still need help?

If you have any questions, would like to learn more, or would like to make a contribution to LAF, send an e-mail laf@aauw.org or call 202.785.7750.

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