Equal Pay Act

The Equal Pay Act (“EPA”) prohibits employers from discriminating on the basis of sex by paying wages at a rate less than the rate at which the employer pays wages to employees of the opposite sex for equal work performed under similar working conditions. Damages in pay discrimination claims can be substantial.

Proving Equal Pay Act Violations

To establish a prima facie case under the EPA, a Plaintiff must show that: (1) she was doing substantially equal work on the job, the performance of which required substantially equal skill, effort, and responsibility as the jobs held by members of the opposite sex; (2) the job was performed under similar working conditions; and (3) she was paid at a lower wage than members of the opposite sex.  

Once the EPA claimant has met that burden, the employer has the burden of demonstrating the applicability of one of the four affirmative defenses identified in the EPA:

  1. a bona fide seniority system;

  2. a merit system

  3. a system which measures earnings by quantity or quality of production; or

  4. a differential based on any factor other than sex.

See 29 U.S.C. § 206(d)(1).

Significantly, the employer must prove not just that proffered reasons could explain the wage disparity, but that the proffered reasons in fact explain the wage disparity. An employer seeking summary judgment in an Equal Pay Act case must produce sufficient evidence such that no rational jury could conclude but that the proffered reasons actually motivated the wage disparity.

Strict Liability for Pay Discrimination

An EPA plaintiff need not allege discriminatory intent on the part of the employer. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 640 (2007) (The EPA does not require a plaintiff to establish that his employer engaged in “intentional discrimination.”).  Instead, a plaintiff need only plead that “employees of the opposite sex were paid differently for performing `equal work’—work of substantially equal skill, effort and responsibility, under similar working conditions.”  Stanziale v. Jargowsky, 200 F.3d 101, 107 (2000). Thus, the employer need not have made the classification itself, but rather, it would be liable under the EPA, barring some affirmative defense, simply for paying employees of opposite sexes differently for performing equal work.

Once a plaintiff establishes a prima facie case, the employer has an opportunity to show that the disparate salaries are caused by a seniority system, a merit system, a production-quota system, or any factor other than sex. 29 U.S.C. § 206(d)(1).  The plaintiff can still prevail if she shows that the justification for the pay disparity was pretextual.  Unlike typical Title VII burden-shifting, the burden of proving an affirmative defense is a burden of proof, not merely a burden of production.