Tuesday, May 3, 2011


The following is a brief overview of the issues affecting pay equity by a fellow NOW member.

By Marcia S. Cohen, Esq.
Marcia S. Cohen, P.A.
111 Second Avenue NE, Suite 706
St. Petersburg, FL 33701

Although Congress passed the Equal Pay Act in 1963 as an amendment to the Fair Labor
Standards Act, it has not proven successful in remedying pay inequality between men and
women. The Equal Pay Act provides that employers may not pay men and women unequal
compensation where they perform substantially similar work, but there were many loopholes in
that statute allowing employers to escape liability for unequal pay, particularly where they could
justify the unequal pay on the basis of “a factor other than sex”. Most federal courts have
interpreted this defense as requiring the employer to show that there was a legitimate business
reason for the pay differential. Some courts, however, have ruled that a business-related reason
was not necessary and that the employer’s justification need not even be wise or reasonable.

Another difficulty faced by women who suspected they were not being equally
compensated for equal work has been employer pay secrecy policies. Many employers forbid
their employees to discuss their pay with one another and punish those who do. This roadblock
often prevents women workers from discovering that they are not being paid as well as the men
who work beside them.

A bill was introduced in Congress that would have remedied this problem. The Paycheck
Fairness Act passed the House of Representatives on January 9, 2009, but was prevented from
being brought up for debate and vote by a minority of Senators on November 17, 2010. It is still
possible that this bill will be re-introduced in Congress.

At present, women employees who seek to learn what their male counterparts are earning
are still at risk for retaliation by their employers, as are men who voluntarily disclose their pay to
their female co-workers.

As though these difficulties were not severe enough, in 2007, the U.S. Supreme Court put
another obstacle in the path of women’s pay equality. Lilly Ledbetter had sued her employer,
Goodyear Tire & Rubber Co., under the Equal Pay Act, when she learned that she had been paid
less than her male counterparts for many years. The Supreme Court held that, since the
employer’s initial pay decision had been taken years before Ms. Ledbetter discovered the pay
inequity, she could not sue her employer under the Equal Pay Act because the decision had not
been made within the 180 day statute of limitations before she filed her complaint.

Fortunately, Congress overrode this unjust Supreme Court opinion and passed the Lilly
Ledbetter Fair Pay Act of 2009. The Act provides that each discriminatory paycheck, not just the
employer’s first decision to pay the woman unequally, resets the time to file a pay discrimination
claim. The Ledbetter Act made it easier for female workers to file pay claims, even if they
discover the unequal pay years after it began.

A woman discovering that she is being paid less than her male co-worker should first go
to her employer or its Human Resources department about the discrepancy. Be aware, however,
that the employee risks retaliation for alleging that she has been the subject of discrimination.

If a union represents the affected employee, she may be protected against unequal pay by
the National Labor Relations Act, if she has engaged in concerted action to remedy pay violations
against other women employees, and should therefore contact her union representative.

If the employer is unwilling to rectify the inequality, she may then file a charge with the
Equal Employment Opportunity Commission and/or a state human rights agency alleging pay
discrimination under Title VII of the Civil Rights Act of 1964,which protects employees against
sex discrimination, as well as the Equal Pay Act. Remedies for pay discrimination under the
Equal Pay Act and Title VII are different, so it may be best to make claims under both statutes.
It is not necessary to file a charge with the EEOC if the woman is making a claim only under the
Equal Pay Act. In that case, she can file suit against her employer immediately after learning of
the pay inequality.

A lawsuit alleging pay discrimination may be filed in federal or state court. If the woman
has filed a charge with the EEOC under Title VII, she need not wait until the agency has
investigated her claims, but may request a notice of right to sue within the period specified under
Title VII. After her receipt of the notice of right to sue, she will have 90 days within which to
file a lawsuit against the employer.

The most recent U.S. Census showed that women still earn approximately 77% of what
men earn. Women workers can be proactive about the continuing wage disparity by lobbying
their congressmen and congresswomen to pass the Paycheck Fairness Act.
This is a brief overview of equal pay law and is not meant to be a full explanation of a
woman’s right to pay equality. A woman concerned that she may not be receiving compensation
commensurate with that of her male colleagues should contact an experienced employment
discrimination attorney for legal advice.

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