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Equal Pay and Discrimination Based on Sex and Gender

The Equal Pay Act of 1963 (EPA) is a federal law that makes it illegal to pay employees differently on the basis of sex or gender. This law protects all genders. Despite this, there is still a pay gap between men and women.

According to the U.S. Department of Labor, in 2021, when comparing the median annual earnings of workers employed full-time, year-round, for every dollar paid to men, women got paid 84 cents. The wage gap is narrowing, but legally there should be no pay differential on the basis of sex.

The EPA updates the Fair Labor Standards Act of 1938, established to fix unequal pay between men and women who perform the same job duties. The EPA applies to all employers — federal, state, and local governments and private employers.

Title VII of the Civil Rights Act of 1964 passed one year after the EPA. Title VII gave workers more protection from wage discrimination in the workplace. The difference between the EPA and Title VII is that the EPA only applies to gender discrimination. But Title VII makes illegal all forms of employment discrimination (for promotions, hiring, firing, wages, etc. ) based on ageracereligionnational origindisabilitypregnancysexual orientation, and gender.

The EPA and Title VII are two different federal laws. This article will describe the differences between the EPA and Title VII when making an employment discrimination claim.

What is Gender Pay Discrimination?

The EPA bans wage discrimination based on gender or sex. Specifically, the EPA makes it illegal to pay employees of the opposite sex different wages even though they do "substantially equal work," and the different pay is due to gender or sex (this includes gender identity).

Let's look at each of the three parts below in detail.

Different pay: Paying you differently does not only mean hourly wage or salary. Pay includes benefits, bonuses, company cars, expense accounts, insurance, etc. The employer must also pay you and your coworkers the same way. For example, it would be illegal for your boss to pay a male employee a higher hourly wage and then try to make it equal by giving a bonus to a female employee who makes a lower hourly wage for similar work. It would also be illegal for the employer to lower some employees' salaries to make the pay equal.

Substantially equal work: You and your coworker perform "equal work" when your jobs require equal skill, the same effort, the same responsibility, and the same work conditions. Equal work does not depend on job title.

  • Same skill means the experience, ability, and education that the job requires. Having extra skills not needed to do the job does not count. For example, a hotel clerk with a high school degree should not get paid less than his female coworker who has a college degree if they are both hotel clerks doing the same job. In the example, a college degree is not needed for the job, so the coworker should not get paid more because of it.
  • Same effort means the same amount of physical or mental effort needed to do the job.
  • Same responsibility is determined by comparing three things:

the extent to which the employee works without supervision, the extent to which the employee exercises supervisory functions, and how much the employee's job duties affect the employer's business

  • Same work conditions means the surroundings and the hazards. The employees must have similar working conditions.

Under the EPA, two jobs with similar duties are unequal if one job spends a significant amount of time doing other tasks that require other skills, efforts, or responsibilities. But if an employer consistently favors one gender or sex when assigning these extra tasks (with extra compensation), it will look bad to a judge.

Due to gender or sex: If you and your coworker of a different gender or sex do equal work (described above) but see a pay differential, it might be because of gender or sex. But your employer can argue that the pay difference is not due to gender or sex discrimination.

For example, your employer can show that the pay is different due to:

  1. A seniority system
  2. A merit system
  3. A system that measures the quantity or quality of work
  4. Any reason other than gender

Retaliation (Revenge for Reporting)

It is illegal for an employer to retaliate (take revenge) against anyone who files an equal pay claim. The law protects the person filing the claim and those who cooperate with the investigation. This protection also makes it illegal to retaliate against someone who disagrees with an employer's actions that allegedly discriminate based on pay.

What Is the Difference Between an EPA Claim and A Title VII Claim?

The Equal Pay Act (EPA) and Title VII of the Civil Rights Acts are two separate federal laws, as described above. The EPA is only for pay discrimination based on gender or sex. Title VII is for employment discrimination in general. The process for filing a claim is slightly different for these two laws. The table below compares the EPA and Title VII.

  EPA Title VII
Type of discrimination
  • Unequal pay (salary, benefits, bonuses, paid expenses, etc.) for equal work (same skills, effort, responsibility, and work conditions)
  • Retaliation (revenge for reporting or cooperating with an investigation)
  • Unfair treatment during the hiring process or at work (hiring, firing, demotion, etc.)
  • Retaliation (revenge for reporting or cooperating with an investigation)
People protected
  • Sex
  • Gender
  • Sex (includes Gender)
  • Race
  • Color
  • National origin
  • Age
  • Disability
  • Genetic information
Type of employer
  • All employers (federal/state/local governments and private employers)
Time limits (statutes of limitations)*
  • Two years after the discriminatory action occurred (non-willful)
  • Three years after the discriminatory action occurred if the discrimination was “willful" (“willful" means that the employer knew their action was illegal but did it anyway)
  • 180 days after the discrimination happened
  • Time limit may be extended to 300 days if your state has a law about age discrimination
How to file a claim
  • Not required to file a claim with the Equal Employment Opportunity Commission (EEOC) before suing in court
  • Can file a claim with the EEOC and/or sue in court at the same time
  • You must file a claim with the EEOC before suing in court
  • Online
  • In person at an EEOC office (appointment recommended but not required)
  • Mail
  • Not allowed to file by phone, but you can call (800) 669-4000 to ask about the process

* The Lilly Ledbetter Fair Pay Act of 2009 makes each paycheck a separate violation when calculating time limits for discrimination claims.

Which Law Should You Use? Filing EPA Claims vs. Title VII Claims

If your boss paid you differently because of your gender, you might be able to use the EPA and Title VII for your claim. Here are some things to help you decide which law might be better for your situation.

Things that make the EPA better:

  1. No need to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) first. You can go directly to court without waiting for the EEOC.
  2. You can sue a small company (less than 15 employees) under the EPA. Title VII only applies to companies with 15 or more employees.
  3. You do not need to prove the discrimination was on purpose (intent) under the EPA. Proving intent is challenging and makes EPA claims easier to win in court.
  4. Longer time limit — two or three years (depending on whether the discrimination was willful) for EPA claims compared with 180 days for Title VII claims.

Things that make Title VII better:

  1. You can win more money. On top of lost wages, you can get money for pain and suffering.
  2. Title VII is more general. The discrimination is not limited to pay and gender. You can sue for other types of unfair treatment.

State Laws

State laws can provide extra rights on top of federal laws. For example, California has its own equal pay law. California's law protects gender but makes pay discrimination illegal for race and ethnicity. Be sure to check the laws in your state.

Filing an Equal Pay Discrimination Claim? Talk to an Attorney First

Whether you choose to use the EPA, Title VII, or both, you should know each law's requirements and time limits. You should also know your rights under your state's laws. Compensation discrimination is illegal, but the wage gap is still a real issue. Using these laws can be confusing and will depend on your situation.

Contact a local employment law attorney to discuss your case, get legal advice, and learn how they can help ensure your fair treatment and pay equity.

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