The Equal Pay Act of 1963 amended the Fair Labor Standards Act (FLSA), making it illegal to pay different wages to employees of different sexes for equal work or jobs requiring equal skill, effort, or responsibility performed under similar working conditions. The act prohibits paying employees of one sex at a rate less than that paid to workers of the opposite sex for substantially equal work.
The act applies to employers in industries engaged in commerce or in the production of goods for commerce. It specifically covers elementary and secondary schools as well as institutions of higher education, regardless of whether they are public or private or are operated for profit or not for profit. Essentially, the act covers the same employees as the FLSA but, in addition, covers executives, administrators, and other professional employees who are normally exempted from the FLSA. In addition, the act covers most state and local government employees, unless they are specifically exempted from its provisions. While most cases under the act involve claims by females, it also protects men. Proof of discriminatory intent is not required in order to prevail on a claim under the act. This entry reviews the provisions of the Equal Pay Act and defenses to claims of discrimination in violation of the act. It then discusses the implementation of the act in higher education, particularly with respect to coaching, teaching, and other academic assignments.
Provisions of the Act
According to the act,
no employer having employees subject to any provision of [the Act] shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he paid wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.
A fundamental premise of the act is the concept of “equal pay for equal work” performed by employees of either sex. In order to recover under the act, plaintiffs must prove that employers are paying or paid different wages to employees of the opposite sex for equal work. The act defines equal work by stipulating that the performance of jobs must require “equal skill, effort and responsibility and which are performed under similar working conditions.” The term equal has been judicially defined as “substantially equal,” which means that the jobs being compared must be either “closely related” or “very much alike.”
In the face of an Equal Pay Act claim, plaintiffs must make appropriate comparisons of two jobs in light of all the circumstances. The focus of inquiries in evaluating whether jobs are substantially equal is on their overall job content. Courts typically look beyond job classifications, job titles, and job descriptions to the basic substance of the work being performed. Wages are differential when they are justified in order to compensate for appreciable variations in skill, effort, responsibility, or working conditions between otherwise comparable work activities. When claimants are able to establish common cores of tasks between two jobs, courts must consider whether any additional tasks make the jobs “substantially different.”
The skill, effort, and responsibility associated with a job are factors to be evaluated separately in determining whether work is equal. Plaintiffs must demonstrate that jobs are equal with respect to each of these factors in order for the equal pay requirement to apply. “Skill” is based on job performance requirements for the positions involved and considers experience, training, education, and ability. “Effort” is based on the physical and/ or mental exertion required for a position. “Responsibility” is evaluated in the context of the importance of a job’s duties and degree of accountability involved, such as the responsibility to supervise and direct other employees. “Working conditions” refers to physical working conditions, including surroundings and hazards.
The act permits the payment of different wages for equal work if those payments are made pursuant to seniority systems, merit systems, systems that measure earnings by quantity or quality of production, or pay differentials based on any other factors other than sex. Salary differentials based on length of time that employees have worked for employers are permissible, even where there is no formal seniority system in effect and even if this may result in generally higher salaries for men.
Violations of the Equal Pay Act
Employees may seek to file charges with the Equal Employment Opportunity Commission (EEOC) or may elect to file suit directly in court to enforce the act. The EEOC may also file suit against employers for alleged violations of the act. Jury trials are permitted under the act. Damages available include back wages, liquidated or double damages, attorney fees, and costs.
The act contains a two-year statute of limitations. However, each time an employer issues a paycheck to a woman for lower pay than a man receives (or vice versa) for performing equal work, a separate act of discrimination occurs and provides a separate basis for liability. The limitations period is increased to three years for willful violations. In addition, willful violations may be prosecuted criminally with conviction possibly resulting in fines and, for second willful violations, imprisonment.
Defenses to Discrimination Claims
Merit system defenses must be grounded in bona fide merit systems. Job descriptions that differentiate between positions but provide no means for advancement or reward based on merit do not constitute bona fide merit systems. Generally, courts require employers to demonstrate objective, written standards.
Employers must validate bona fide incentive systems based on either the amount of labor or the quality of work produced for a defense based on quantity or quality of production in order to apply. The quantity test refers to compensation rates of equal dollars per unit. As such, there is no discrimination if two employees receive the same rate of pay for producing the same product but one receives more total compensation because of his or her ability to produce more of the product. Employers may not pay lesser rates per unit to females in order to equalize total compensation between men and women where there are no qualitative differences between the work being performed, such as teaching at colleges and universities.
The “factors other than sex” defense is a broad exception encompassing the right of employers to change and revise their job evaluation and pay systems. Basing wages on sex-neutral objective measures is an example of the “factors other than sex” defense. If differentials in pay would have been the same regardless of an employee’s sex, there is no violation under the act.
Equal Pay in Higher Education
Issues regarding equal pay often arise in the context of coaching assignments. Whether two coaching assignments are considered substantially equal is a question of fact. Each position must be analyzed to determine whether they are, in fact, substantially equal, generally considering whether equal skills, equal effort, equal responsibility, and similar working conditions are involved.
The EEOC has issued a publication, Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions (“EEOC Guidance”) that contains numerous examples of how coaches are compensated and provides a useful framework for analysis of equal pay claims. At the same time, though, the EEOC has acknowledged that what constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined. The EEOC Guidance emphasizes that insignificant or inconsequential differences do not prevent jobs from being considered equal. The guide states that focus should be on overall job content.
The EEOC Guidance states as follows:
To determine whether the coaching jobs require equal effort, the Commission will look at the actual requirements of the jobs being compared, 29 C.F.R. § 1620.16(a), and will not limit its analysis to coaches of like sports. Coaches, regardless of the sport, typically are required to perform the following duties at both the high school and college level; (1) teaching/training; (2) counseling/advising of student athletes; (3) general program management; (4) budget management; (5) fundraising; (6) public relations; and (7) at the college level, recruiting. Some coaching jobs will require other duties, such as management of staff and event management.
Representative litigation highlights how this operates in intercollegiate athletic settings. In Horn v. University of Minnesota (2004), a male former assistant women’s hockey team coach failed to establish that his position was substantially equal to that of a female assistant coach. The Eighth Circuit pointed out that the male accepted the second assistant position and the female was required to also serve as a public representative of the hockey team as well as its administrative assistant. In Lewis v. Smith (2003), the federal trial court in Arizona maintained that assistant coaching positions were not substantially equal where the respective coaches had substantially different levels of responsibility and effort regarding the very significant duties of off-campus recruiting, scouting, and dealing with the medical staff. Likewise, in Stanley v. University of Southern California (1999), the Ninth Circuit was of the opinion that the head coach of the women’s basketball team did not establish an equal pay violation as compared to the head coach of the men’s basketball team. The court observed that the coach of the men’s team had substantially different responsibilities and superior qualifications related to public relations and promotional activities designed to generate revenues. Similarly, in Weaver v. Ohio State University (1999), a federal trial court in Ohio ruled that differences in wage rates between the female field hockey coach and the male ice hockey coach were based on merit and seniority factors and on market rate, which were factors other than sex used to differentiate their pay.
Teaching and Other Academic Assignments
Issues of equal pay may also arise with respect to teaching and other professional academic assignments. These issues are particularly difficult to assess where the special characteristics of an academic community are involved. Although the overall objective of collegiate educators may well be the same, each educator brings unique qualities that are not easily compared.
In Hein v. Oregon College of Education (1983), for example, the Ninth Circuit found that the proper test for establishing a prima facie case of discrimination under the act in a professional setting, such as that of a college, is whether the plaintiff is receiving lower wages than the average wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to other factors, such as seniority, that affect the wage scale. The court explained that this standard recognizes that variations in professional settings may result from a multitude of factors that may not implicate sex discrimination. The court indicated that its analysis was further complicated insofar as educational institutions may reward professional experience and education without violating the act.
In Winkes v. Brown University (1984), the First Circuit rejected the claim that a university violated the act when a female faculty member received a larger raise than a male colleague. The court noted that university officials were required to match the offer of another institution to retain the female faculty member. Further, in another case from the First Circuit, Donnelly v. Rhode Island Board of Governors for Higher Education, et al. (1997), the court was satisfied that because a male faculty member was paid more based on his choice of academic field and the workings of the national market, not sex, university officials did not violate the act.
Jon E. Anderson
See also Title VII
- Equal Employment Opportunity Commission. (1997). Enforcement guidance on sex discrimination in the compensation of sports coaches in educational institutions. EEOC Notice 915.002. Washington, DC: Author.
- Gaal, J. M., Glazier, M. S., & Evans, T. S. (2002). Gender-based pay disparities: Intercollegiate coaching, the legal issues. Journal of College & University Law, 28, 519–568.
- Keohane, L. (1997). Universities, colleges and the Equal Pay Act: The Fourth Circuit analyzes a salary dispute in Strag v. Board of Trustees. Campbell Law Review, 19, 333–348.
- Perez-Arrieta, A. (2005). Defenses to sex-based wage discrimination claims at educational institutions: Exploring “equal work” and “any other factor other than sex” in the faculty context. Journal of College & University Law, 31, 393–415.
- Donnelly v. Rhode Island Board of Governors for Higher Education, et al. 929 F. Supp. 583 (D.R.I. 1996), aff’d, 110 F.3d 2 (1st Cir. 1997).
- Equal Pay Act, 29 U.S.C. § 206(d) (2000).
- Hein v. Oregon College of Education, 718 F.2d 910 (9th Cir. 1983).
- Horn v. University of Minnesota, 362 F.3d 1042 (8th Cir. 2004).
- Lewis v. Smith, 255 F. Supp. 2d 1054 (D. Ariz. 2003).
- Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999).
- Weaver v. Ohio State University, 71 F. Supp. 2d 789 (S.D. Ohio, 1999).
- Winkes v. Brown University, 747 F.2d 792 (1st Cir. 1984).