The Equal Pay Act prohibits gender-based wage discrimination for substantially equal work. Under the act’s “equal pay for equal work” standard, employers can’t pay a woman less than a man for doing the same job.
Though the Equal Pay Act was signed into law 60 years ago this June, the gender pay gap stubbornly persists. In 2022, on average, women earned 82% of what men earned. This is only 2% higher than in 2002, when women earned 80% as much as men.
Though the Equal Pay Act provides important remedies for blatant gender-based wage discrimination, it’s ineffective against the more subtle nuances that perpetuate the gender pay gap. The law also provides no remedy against race-based wage discrimination, though pay disparities based on race likewise persist, and pay disparities are even greater for women of color.
State analogues to the Equal Pay Act provide broader protections, however, and may permit a plaintiff to bring claims for unjust employer conduct that is not covered by the federal act.
Filing Under the Equal Pay Act
To succeed on a claim under the Equal Pay Act, a plaintiff must show that they were paid less than someone of a different gender even though they performed “equal work” on jobs of equal skill, effort, and responsibility, and under similar working conditions.
Meeting this standard is an uphill battle. Often, the plaintiff must point to one or more “comparators” who performed substantially the same job and were paid more. But identifying another employee at the same company who bears the same responsibilities and performs the same duties may not always be possible.
Additionally, if the employer can justify the pay differential based on “any other factor other than sex” the plaintiff will lose. Proving an Equal Pay Act violation is thus a heavy burden to bear.
Even if a plaintiff succeeds in meeting this demanding standard, they can only recover damages—in the form of back pay—for pay discrimination that occurred within two years prior to the date on which they brought suit.
State Law Pay Discrimination Claims
Where the federal Equal Pay Act falls short, state analogues to the act may fill in gaps and provide a remedy. For example, while the federal Equal Pay Act establishes an “equal work” standard, state laws establish other, less burdensome standards, such as New Jersey’s standard requiring a showing of “substantially similar work” based on “a composite of skill, effort and responsibility.”
Some states prohibit pay discrimination based on protected characteristics other than gender. Other states have longer statutes of limitations, and thus allow recovery for more than the two years of back-pay damages available under federal law.
To prove an equal pay violation, employees must have some knowledge of their colleagues’ compensation. This information is uniquely in the employer’s control and generally not readily available to potential plaintiffs. A number of states have enacted prohibitions of retaliation against employees who seek such information in support of an equal pay claim.
Plaintiffs trying to obtain relief for pay discrimination face another hurdle: To recover, they must first litigate their claims, which is costly and can take years. Lawyers representing these plaintiffs are often paid on a contingency basis, meaning they will only recover if they achieve a “win” for their client. Even then, the lawyer’s fee is a percentage of the awarded damages, which may not reflect the hundreds of hours the lawyer spent on the case or the risk the lawyer faced of not being paid at all if the plaintiff lost.
To incentivize lawyers to litigate such cases—and for plaintiffs to bring their claims despite the length and emotional toll of litigation—some states have enacted provisions allowing recovery of additional damages. The New Jersey Law Against Discrimination, for example, mandates recovery of three times any monetary damages awarded by a jury against an employer found guilty of pay discrimination.
Federal employment laws are vital protections that set a baseline to ensure all workers are treated with dignity. But they are not the panacea for all exploitative or unjust employment practices. When identifying the claims an aggrieved employee can bring against their employer, plaintiff-side lawyers should always remember to check whether applicable state law provides broader protections than the relevant federal law.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Elena Schiefele is a litigation fellow at Sanford Heisler Sharp and received her law degree magna cum laude from Washington and Lee University School of Law.