Outten & Golden is committed to ensuring that employers pay all their workers equally for equal work. Our attorneys litigate against companies that contribute to the national pay disparity between men and women and among different racial groups. The persistent wage gap in America might seem unchangeable but the attorneys at Outten & Golden believe otherwise: through individual and class action litigation, companies are forced to adhere to the law by leveling the playing field for all workers.
Wage discrimination can come in many forms: higher hourly wages for male associates; better commission structures for some workers than others; higher leveling of White and/or male employees for the same jobs; steering of women or people of color into lower paying jobs; or lucrative accounts and clients going to only white employees. Employees need experienced and knowledgeable attorneys representing their interests. Outten & Golden attorneys have brought successful* suits against some of the biggest employers in the nation and will continue to do so until pay disparity in gender, race, and other protected classes are a thing of the past.
Overview of Pay Equity Laws
The Federal Equal Pay Act (EPA) prohibits an employer with 15 or more employees from paying employees unequally on the basis of sex. The EPA requires employers to pay men and women in the same establishment equal pay for substantially equal work under substantially equal working conditions. Unlike a claim under Title VII, an employee need not prove that their employer intended to pay them less.
Title VII prohibits employers with 15 or more employees from discriminating against employees with respect to their “compensation, terms, conditions, or privileges of employment” on the basis of a protected class. Therefore, Title VII goes further than the EPA in that it protects discrimination in compensation based on gender, but also other protected categories such as race, age, religion, disability status, sexual orientation, and national origin.
Signed into law by President Obama in 2009, the Lily Ledbetter Fair Pay Act of 2009 overturned the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which severely restricted the time period for filing complaints of employment discrimination concerning compensation. The law amends Title VII to provide that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began. Therefore, the statute of limitations for filing an equal pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action.
State and Local Laws
New York’s equal pay law mandates equal pay among employees in the same establishment who perform at least “substantially similar” work, when considering skill, effort, responsibility, and working conditions. Employees have six years to file a claim under the NY EPL. The law also requires equal pay among all protected groups —not just based on gender.
NY EPL only allows for the following justifications for a wage differential: differences based on (i) a seniority system, (ii) a merit system, (iii) “a system which measures earnings by quantity or quality of production,” or (iv) “a bona fide factor” other than the protected status, such as education, training, or experience. The employer must show that this “bona fide factor” is job-related, satisfies a specific business purpose, and is consistent with business necessity. However, the employer cannot rely on these justifications if its pay practice disparately impacts any of the protected classes and the employer has refused to adopt an alternative that would not result in a differential.
Under the California EPA, an employer cannot pay someone less than what it pays to employees of the opposite sex, or another race or ethnicity, for substantially similar work performed under similar working conditions, while taking into account the individual's skill, effort and responsibility. California also eliminated the requirement that the wage differential must be within the “same establishment” to be unlawful.
The California Equal Pay Act contains four defenses that an employer can use to justify the pay differences: (1) a seniority system (differences in pay based on the length of service with the employer); (2) a merit system (e.g. differences in pay based on written performance evaluations); (3) a system that measures earnings by quantity or quality of production (e.g. piece rate work, automobile mechanics paid based on each repair job completed); or (4) a bona fide factor other than sex, such as education, training, or experience.
The New York State Human Rights Law makes it unlawful to “discriminate against
such individual in compensation or in terms, conditions or privileges of employment.” Like the New York Equal Pay Law, the State Human Rights Law provides protection to a broader set of individuals and prohibits pay discrimination on the basis of all protected classes such as race, age, gender, national origin, disability, and more. While the New York Equal Pay Law requires individuals to point to a higher paid comparator within their “same establishment,” the State Human Rights Law allows individuals to compare their pay to any higher-paid employee without respect to location.
The New York City Human Rights Law contains many protections against unequal treatment in the terms and conditions of employment, including compensation. Just like the New York State Human Rights Law, it protects discrimination in compensation based on gender, but also other protected categories such as race, age, religion, disability status, sexual orientation, and national origin. The City Human Rights Law is known as one of the most progressive anti-discrimination laws in the nation and is “construed liberally” by courts. In fact, at least one court has held that unlike the State Human Rights Law, plaintiffs need not point to a direct comparator to prove their pay discrimination claims under the City Human Rights Law.
The California Fair Employment and Housing Act (FEHA), California’s state anti-discrimination law, prohibits discrimination based on all protected classes in “in compensation or in terms, conditions, or privileges of employment.” This includes intentionally paying an employee in a protected class less than other employees. Individuals bringing unequal pay claims under FEHA must prove that their employer paid an individual outside of their protected class more than them for substantially similar work. Under the FEHA, an employee must exhaust their administrative remedies by filing a charge with the Civil Rights Department and receive a notice of right to sue before bringing a civil lawsuit.
The District of Columbia Human Rights Act (DCHRA) prohibits employers from discriminating “against any individual, with respect to his or her compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his or her employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his or her status as an employee.” The DC HRA includes additional protected characteristics that are not covered by federal law and some state law, including gender identity or expression, political affiliation, personal appearance and family responsibilities.
When pay data is not public, it can be difficult to ascertain whether you’re being paid less than your male and/or white peers. Doing some online research can help you learn about comparable pay in your particular job, although it may be inaccurate or outdated. Another option would be to ask your coworkers what they are earning. Federal laws and some state and local laws protect an employee’s right to discuss their pay. If you suspect you are being paid less than your coworkers, the best thing to do is to speak with an attorney.
Equal Pay law prohibits an employer from paying employees unequally in all forms of compensation, including, among other things, bonuses, stock options, shares, deferred compensation, retirement benefits, and carried interest. While it is often difficult to know whether you are being paid less than a male colleague, if you suspect it is the case, you should speak with an attorney who can advise you on your equal pay rights.
The determination of whether two employees are performing equal or similar work turns on the actual content of the job and the duties performed. Job titles, job descriptions or classifications are not determinative in establishing whether the work is substantially equal. Therefore, even if two employees are performing equal or similar work but are classified in different job titles, they can still prove a violation of the equal pay laws.
The Federal EPA and some state equal pay laws, require that employers pay men and women equally for substantially equal work performed in the same establishment. Therefore, an employee bringing a claim under such statutes must be able to point to a comparator within their “same establishment” – in other words the same office or facility – that is being paid more for substantially equal work. Other states’ equal pay laws, like California, eliminated the requirement that the employees being compared work at the same office. Further, anti-discrimination laws, like Title VII, the New York State and City Human Rights Laws, and the California Fair Employment and Housing Act, do not require that an employee works in the same office as her comparator.
The law allows employees to compare their pay to others who are predecessors (employees who previously worked for the employer but no longer do) or successors (employees who were hired after a plaintiff left the employer).
While the Equal Pay act only prohibits unequal pay between people of different genders, other laws protect people from unequal pay on the basis of race, national origin, or ethnicity. These laws include Title VII, Section 1981, and state and local laws.
While the Equal Pay act only prohibits unequal pay between people of different genders, other laws protect people from unequal pay on the basis of pregnancy, disability, or sexual orientation. These laws include Title VII, the Pregnancy Discrimination Act, the Americans with Disabilities Act, and state and local laws.
The EPA provides four affirmative defenses an employer may use to show the pay difference is unrelated to gender: (1) seniority (paying employees according to the length of their employment.); (2) merit (paying employees based on their job performance based on structured procedure and predetermined criteria); (3) quantity or quality of production (paying employees based on structured output); or (4) a differential based on any factor other than sex. The available defenses under state equal pay laws may differ.
The National Labor Relations Act states that employers cannot ban the discussion of salary and working conditions among employees. There also may be state laws, like those in New York and California, that prohibit employers from enacting confidentially policies that prohibit employees from discussing their wages.
The answer changes on a state-by-state basis. While many state laws do not prohibit this, some states, like New York and California, prohibit employers from relying on an applicant’s salary history in setting wages, asking an applicant or current employee about salary history, seeking salary history from applicants or current employees, and retaliating against an employee who has refused to share salary history or has filed a complaint.
Under the EPA, employees have two years after the unlawful compensation practice to file a claim, or three years in the case of a “willful violation.” Other laws have different deadlines, known as statutes of limitations, for filing claims. It is important to consult with an attorney who can advise you about any filing deadlines that may apply to you.
The same laws that prohibit pay inequality also protect employees who raise concerns or complaints about pay inequity or pay discrimination. If you believe your employer has retaliated against you for raising concerns or complaining about pay inequality or pay discrimination, you should speak with a qualified attorney.
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