Equal Pay Act Promise Still Not ‘Fully Realized’ 60 Years Later

Six decades after the enactment of a landmark federal antidiscrimination bill, questions linger about how well the statute has fulfilled its original promise of equal pay for equal work.

Despite the Equal Pay Act’s long history, the US Bureau of Labor Statistics reported in 2022 that women earned only a median of 83 cents for every dollar a man made, with the gap even wider for women of color.

Data from the Equal Employment Opportunity Commission, which enforces the law, show thatthe total number of EPA-related charges filed with the agency has remained relatively consistent since the 1990s, indicating gender pay discrimination isn’t abating.

June 10 will mark 60 years since former President John F. Kennedy signed the EPA, which explicitly bans pay discrimination based on sex. The law states that an employer must pay men and women equally for jobs that require “equal skill, effort, and responsibility, and which are performed under similar working conditions.”

“The EPA was one of the first major civil rights laws and was transformative in enshrining the principle that women and men deserve equal pay for substantially equal work,” EEOC Vice Chair Jocelyn Samuels told Bloomberg Law. “That said, pay discrimination remains a reality,” she said. “The promise of the Equal Pay Act has not yet been fully realized.”

Statutory Weakness

The EPA contains exceptions allowing an employer to pay men and women different wages based on seniority, merit, quantity or quality of production, or “a differential based on any other factor other than sex.”

Advocates and plaintiff’s lawyers have criticized the EPA’s “catch-all” defense for employers under this fourth exception. The catch-all has been interpreted by some courts to include prior salary as a defense, which may already be lower for a female employee than a comparable male because of pre-existing sex bias.

Sarah Brafman, national policy director at A Better Balance, said existing federal pay equity law needs to be updated to ensure employers are putting forth “bona fide reasons” to explain gender pay differentials.

Samuels said that, in addition to the catch-all, the EPA requirement that comparators work in the same “establishment” is one of the law’s biggest flaws, and has worsened with the uptick in remote work following the COVID-19 pandemic.

The EPA only applies to employees “working in the same establishment, which given particularly the prevalence of remote work right now creates, I think, an overly narrow focus in evaluating who is an appropriate comparator for pay discrimination,” Samuels said.

Courts tend to interpret “equal” or “substantially similar” work as both positions having the “exact same title” at “the exact same level” in the organization, making it difficult to establish a fellow employee as a comparator, said Anne Shaver, a partner at the San Francisco office of Lieff, Cabraser, Heimann & Bernstein LLP.

“A lot of employers now have many different locations across the country in different states or even within the same state, and they’re all ultimately reporting up through the same centralized structure,” Shaver said. “But if they’re not exactly in the same office location, courts have interpreted that to mean they’re not in the same location and can’t be compared for purposes of equal pay.”

Stronger Protections

Rep. Rosa DeLauro (D-Conn.) and Sen. Patty Murray (D-Wash.) reintroduced the Paycheck Fairness Act earlier this year. The bill would strengthen EPA protections by prohibiting employers from asking job candidates their pay history and protect employees’ rights to discuss salaries with their co-workers.

The legislation, which would also require employers prove that disparities exist for “job-related” reasons, has been stalled in committee since March.

The EPA “retains real utility,” but the Paycheck Fairness Act “would really sharpen its effectiveness as a tool to ensure equal pay for equal work,” Samuels said.

While there has been little movement in terms of strengthening protections at the federal level, several states, including California and New York, have stepped in to pass laws incorporating some of the Paycheck Fairness Act provisions.

Some employment attorneys who represent companies are skeptical of the effectiveness of the expanded laws, which they say could shift the balance of power too dramatically.

Matthew Gagnon, a Seyfarth Shaw LLP partner in Chicago, said the new protections could transition the courts into a “super HR” role that restricts the “adaptability and flexibility” of employer decision making.

“I think the idea would be to give plaintiffs and employees, in combination with the courts, more of an oversight role over how employers make their decisions,” Gagnon said.

But Brafman said passing the Paycheck Fairness Act remains important, citing recentstudiesthat show that in states where salary history bans and pay transparency measures were enacted, wages for women increased relative to men.

“Every year over and over we talk about these statistics and it’s really time to face them head on and hopefully the 60th anniversary is a real moment to do that,” Brafman said.