The Equal Pay Act of 1963 ("EPA") bans pay discrimination on the basis of sex. The EPA amended the Fair Labor Standards Act of 1938 ("FLSA"), the federal law that sets national standards regarding minimum wage, maximum hours, overtime, and child labor. Title VII of the Civil Rights Act of 1964 ("Title VII") also prohibits sex-based pay discrimination. However, coverage, enforcement, and procedural requirements differ between the EPA and Title VII. This post focuses on the EPA.

Coverage

The EPA covers employers with two or more employees–i.e., any workplace where unlawfully unequal pay can happen. The U.S. Equal Employment Opportunity Commission ("EEOC") maintains that "someone who has an Equal Pay Act claim may also have a claim under Title VII." However, based on Title VII's legislative history, the U.S. Court of Appeals for the 5th Circuit has found such an interpretation to be a misguided presumption. Unlike a Title VII or Chapter 21 Texas Labor Code claim, an EPA complainant does not have to file a charge with the EEOC or the Texas Workforce Division Civil Rights Division before filing a suit in court. She can directly file suit in court within two years of the alleged violation–or within three years if the employer willfully violated the EPA.  

Elements of an EPA Claim

An EPA plaintiff must prove that 1) the employer is subject to the EPA; 2) she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and 3) she was paid less than the employee of the opposite sex providing the basis of comparison. The plaintiff does not have to prove that her employer intended to discriminate against her. The EPA also contains anti-retaliation provisions for those filing claims or testifying (or will testify) in proceedings.

An EPA claim can be difficult where there is no appropriate comparator employee. The "equal work" assessment does consider position titles and job descriptions, but the actual job duties are most critical to the claim. "A common approach is to determine whether the jobs to be compared have a common core of tasks and then ascertain whether the differing or additional tasks make the work 'substantially different.'" Wojciechowski v. Nat'l Oilwell Varco, L.P., 763 F. Supp. 2d 832, 849 (S.D. Tex. 2011).

Employer Defenses

The employer then has the opportunity to show that any difference in pay is based upon one of the EPA's affirmative defenses: 1) a bona fide seniority system; 2) a bona fide merit system; 3) a system which measures earnings by the quantity or quality of production; or 4) a differential based on any other factor other than sex. The employer can offer evidence of differences in job or skill levels, previous training, experience, or special circumstances connected with the business. These defenses–especially the "any other factor other than sex" defense–provide a relatively easy burden for the employer to meet.

Once the employer offers its legitimate, non-discriminatory reason for the alleged difference in pay, the EPA plaintiff has to show that the employer's reason is pretextual.

Remedies  

Violating employers are liable to employees for the unpaid wages resulting from the pay differences and the same amount as liquidated damaged. Violations of the anti-retaliation provisions could result in employment, reinstatement, promotion, and payment of unpaid wages in addition to the same amount as liquidated damages.

If you would like to discuss whether you may have an EPA claim against your employer or former employer, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.