©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 1 EQUAL PAY LEGISLATION A.The Federal Equal Pay Act And Title VII The Equal Pay Act (“EPA”) was enacted by Congress in 1963, one year earlier than Title VII of the Civil Rights Act of 1964 (“Title VII”). It prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which [it] pays 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 . . . .”1 The law recognizes four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.2 The EPA therefore overlaps with Title VII, in that both statutes prohibit discrimination on the basis of sex. However, as discussed below, the EPA diverges from Title VII, both procedurally and substantively, in important ways. In addition to private litigation, the EPA can give rise to enforcement proceedings brought by the U.S. Equal Employment Opportunity Commission (“EEOC”). For the past decade, the EEOC has identified equal pay as one of the six enforcement priorities in its Strategic Enforcement Plan.3 Although the number of filings brought under the EPA make up a relatively small percentage of the EEOC’s docket, agency personnel have repeatedly reaffirmed its importance as an enforcement priority for the EEOC. This publication addresses significant developments in equal pay litigation under the federal EPA, Title VII, and similar state laws. Although there is an emphasis on the most recent decisions, in order to provide an up-to-date snapshot of the current state of the case law, the primary aim of this publication is to identify and discuss significant developments in the law, many of which take years to develop. B. State Equal Pay Legislation Equal pay has been a prominent issue at the statewide level as well, with numerous states amending their equal pay laws to supplement the federal EPA. California, New York, and Massachusetts were the first states to adopt more onerous equal pay laws over the last few years.4 Other states soon followed. State equal pay laws differ from the federal EPA in significant ways. For example, on January 1, 2016, the California Fair Pay Act became effective for all employers with California-based employees.5 It expands upon the protections offered by the federal EPA and Title VII, as well as already-existing California law. Importantly, the California Fair Pay Act allows employees to be compared even if they do not work at the same establishment.6 This means that an employee’s pay may be compared to the pay of other employees who work hundreds of miles away. By comparison, New York’s equal pay law also allows employees to be compared even if they do not work at the same establishment, but those comparators must work in the same “geographic region” no larger than the same county.7 Unlike the federal EPA, which requires plaintiffs to establish that they performed “equal work” as a comparator of the opposite sex, the California law requires a showing that employees are engaged in “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed 1 29 U.S.C. § 206(d)(1). 2 Id. 3 See U.S. Equal Employment Opportunity Commission, Strategic Enforcement Plan Fiscal Years 2024 - 2028, Strategic Enforcement Plan Fiscal Years 2024 - 2028 | U.S. Equal Employment Opportunity Commission (eeoc.gov). 4 2017 Cal. Legis. Serv. Ch. 688 (A.B. 168) (West); N.Y. Lab. Law § 194 (McKinney); Mass. Gen. Laws Ann. ch. 149, § 105A (West). 5 Cal. Lab. Code § 1197.5. 6 See id. The California Fair Pay Act expressly removed from the preexisting California pay law statutory exemptions that applied where work was performed “at different geographic locations” and “on different shifts or at different times of day.” 7 NY Lab. Law §§ 194, et seq.
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