EPA - Equal Pay Act

The Equal Pay Act of 1963 was enacted as an amendment to the FLSA and requires "equal pay for equal work" regardless of the gender of the employee. The EPA prohibits an employer from discriminating between employees on the basis of gender by paying employees of one gender less than employees of the opposite gender for performing work substantially equal in skill, effort, and responsibility under similar working conditions. The "equal work" standard does not require that the compared job be identical, only that they be "substantially equal" (i.e., that the jobs to be compared have a "common core" of tasks). The inquiry then turns to whether any differing or additional tasks made the work substantially different.

Under the EPA, a wage differential is permitted if it is the result of one of the four statutory exceptions set forth in the statute:

a seniority system
a merit system
a system that measures earnings by quantity or quality of production
a differential based on any factor other than sex.

The "other than sex" exception typically includes such sex neutral elements as experience, training programs and economic benefit to the employer. The "market force theory" that an employer must pay more to acquire male workers in certain industries and may pay less to female employees because this is what the market will bear has been rejected by the courts. An employer may not attempt to comply with EPA by reducing the wage rate of any employee.

The Equal Employment Opportunity Commission has the authority to enforce the EPA. An employer in violation of the EPA will be liable for compensatory damages in the amount of the wage differential over the relevant time period during which that differential existed. An employer also will be liable for "liquidated damages," equal to and in addition to compensatory damages, unless the employer demonstrates that it acted in good faith and with reasonable grounds for believing that the wage differential was not violative of the Act. The EPA has a two-year limitations period for non-willful violations and a three-year limitations period for willful violations. Each issuance of a paycheck to an employee who is at a lower classification than her male counterpart constitutes a new discriminatory action for purposes of determining the statute of limitations.

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