Blanchard & Walker Weekly

Topic of the Week  Pay or Compensation Discrimination

Pay or compensation discrimination occurs when employees performing similar work do not receive similar pay. Pay discrimination also occurs when a difference in pay has an unlawful basis such as race or sex. Pay discrimination based on an employee's membership in a protected category like race, disability, or sex, is prohibited by anti-discrimination laws. Relevant laws include Title VII, the ADA and ADEA, state anti-discrimination laws, and the Equal Pay Act which specifically addresses pay discrimination based on sex.

1. What criteria is used to determine whether or not an employer has committed pay or compensation discrimination?

Under the Equal Pay Act (EPA), a claimant “does not have to prove that two jobs are identical but rather must show that the “skill, effort and responsibility required in the performance of the jobs are substantially equal.” Arrington v. Cobb County, 139 F.3d 865, 876 (11th Cir. 1998).Work is “substantially equal” for purposes of the EPA if it requires “equal skill, effort, and responsibility.” 29 U.S.C. § 206(d)(l). This determination turns on the actual content of the job-not mere job descriptions or titles. EEOC v. Cent. Kan. Med. Ctr., 705 F.2d 1270, 1273 (10th Cir. 1983).

The law looks to many factors when determining whether or not pay/compensation discrimination has occurred. Each of these factors is summarized in categories below:

  • skill: measured by factors such as the experience, ability, education, and training required to perform the job. The critical 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: 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 an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment

Differences in pay are permitted when they are based on seniority, merit, quantity or quality of production. These are known as affirmative defenses and it is the employer’s responsibility to prove that they apply.

2. Is it illegal to give different benefits to male and female employees?

Employers are not allowed to condition benefits available to employees and their spouses and families on whether the employee is the “head of the household” or “principal wage earner” in the family unit, since that status bears no relationship to job performance and discriminatorily affects the rights of female employees.

An employer cannot make benefits available:

  • for the wives and families of male employees where the same benefits are not made available for the husbands and families of female employees;
  • for the wives of male employees which are not made available for female employees; or
  • for the husbands of female employees which are not made available for male employees.

It is also against the law for an employer to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differentiates in benefits based on sex.

Thought of the Week

"Women should do for themselves what men have already done—occasionally what men have not done—thereby establishing themselves as persons, and perhaps encouraging other women toward greater independence of thought and action."

–Amelia Earhart, first female aviator to fly solo across the Atlantic Ocean

Weekly Comic by Jerry King

Weekly Comic by Jerry King

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