The Equal Pay Act, which passed into law in the United States in 1963, requires that employers provide female and male employees an equal amount of pay when both perform the same jobs. When a female worker on a job alleges a violation of the act, she must prove that (a) her work was “equal” to the work of the male employee, (b) the work of both the plaintiff and the comparison male employee were performed in the same “establishment,” and (c) the complaining female’s rate of pay was less than the rate of pay of the comparison male employee’s pay. An employer might justify the pay differences by showing that they reflected a valid seniority-based pay system, a merit- or performance-based pay plan, a pay plan that bases pay on the quality or quantity of production, or any pay plan giving different levels of pay to workers doing equal kinds of work where the pay difference is based on any factor other than sex.
For several years prior to the 1963, the U.S. Congress had considered versions of a bill that would have prohibited unequal pay for comparable work. Equal-pay evidence is primarily based on job descriptions, whereas comparable-work evidence requires the much more expensive and complex job evaluation process to quantitatively evaluate the worth to the employer of different jobs. Comparable work requires equal pay for males and females for different jobs of equal worth to the employer. During World War II, the National War Labor Board used the comparable-work standard in its decisions, but the equal-work standard prevailed in the Equal Pay Act, primarily because the Congress did not wish to mandate job evaluation for employers.
Labor Department guidelines for the Equal Pay Act define jobs as being equal on the basis of four required factors: (1) equal skill of the workers, (2) equal mental or physical effort to perform the job, (3) equal responsibility for performance, and (4) equal working conditions, that is, equal hazards and physical surroundings in which the work is performed. When evidence supports the charge of unequal pay, an employer must prove that one of these four factors was actually unequal.
The courts have insisted that the relevant work evidence must be the actual work performed and that the work must be substantially equal, not exactly equal. However, equal pay for different but comparable jobs is not required.
The courts have decided several cases with the charge of unequal pay between females and males on unequal work. For the most part, these cases have alleged violations of Title VII of the Civil Rights Act, not of the Equal Pay Act. In general, these cases showed that the employer had maintained a general pattern of sex discrimination against females in regard to hiring, placement, or promotion, as well as pay discrimination. The courts did establish that charges of pay discrimination on dissimilar (not equal) jobs could be brought under Title VII, but they did not consider what might constitute pay discrimination in dissimilar jobs. In these EEOC cases, a group of females would need to prove (a) a general employer pattern of discriminatory personnel practices; (b) that the employer improperly used market survey data to justify the lower pay for females than males (though in one case, the court concluded that market disparities were not what Title VII tries to prevent); or (c) that the employer established a comparable-worth plan and continued to discriminate against females by paying them less than males on comparable jobs and less than the employer’s own plan called for.
In essence, the requirements of the Equal Pay Act do not call for comparable-worth pay approaches for men and women. A comparable-worth approach would require comparable pay for jobs that require similar job skills, effort, and responsibilities, even if the exact content of the jobs were different. Various attempts to establish comparable-worth payment laws in the United States have failed, and comparable-worth pay has not become established as the law in the United States.
- Jones, J. E. Jr., Murphy, W. P. and Belton, R. 1987. Cases and Materials on Discrimination in Employment. Paul, MN: West Publishing.
- Milkovich, G. T. and Newman, J. M. 2005. “Government and Legal Issues in Compensation.” Chapter 17 in Compensation, by G. T. Milkovich and J. M Newman. New York: McGraw-Hill/Irwin.
- Player, M. A. 1992. Federal Law of Employment Discrimination: In a Nutshell. Paul, MN: West Publishing.