Women make up nearly half of the American workforce. In half of American families with children, women are the sole or co-wage earner. And yet, women consistently earn less money than their male counterparts.
It is estimated that in 2015, women employed full-time and year-round in the United States made 80 cents for each dollar that men earned. This 20 percent difference is known as a gender wage gap. Additional research shows that women earn less, on average, than men in practically every occupation that tracks this information, with estimates as high as 98 percent of all occupations indicating a gap in gender wages.
Interestingly, industry experts show that it may take over 40 years for women to close the gap and earn the same as men. And for persons with disabilities or non-white women, this can take much longer, with experts estimating that black women won’t receive equal pay for over 100 years, and Hispanic women needed 200 years to close the gap.
These statistics underscore why many employees are surprised to learn that there are laws in place that protect equal pay in the workplace. If you think you are the victim of workplace discrimination against women in the form of unequal pay, you are not alone.
At California Sexual Harassment Attorney, we are leaders in fighting workplace discrimination.
In this article, we provide some general information about equal pay in the workplace as well as discrimination against women. Discrimination can take many forms, including unequal pay for equal work as well as harassment.
You do have legal recourse when your employer is treating you illegally through unequal wages. Note that this information cannot be used as legal advice, as only a lawyer who understands your specific situation can provide that.
Why are women paid less than men?
Reasons for this evident pay gap are varied and unclear. Some research indicates that jobs and/or careers where woman are the primary employees result in less pay than jobs where men are the primary employees. Even as women have made unprecedented moves into industries that were traditionally considered “male only” in the last several decades, women have seen little to no improvement in gender integration in the last two decades. Some experts say that it is this persistent segregation in the workplace that contributes to the lack of progress in addressing this wage gap.
Another reason for the wage gap may be the lack of understanding around employees’ rights when it comes to equal pay. Socioeconomic and cultural factors, such as how women and men are taught to approach work, may further contribute to the divide.
Are there laws regarding equal pay?
Yes, there are several laws regarding equal pay and pay discrimination in the workplace.
The Equal Pay Act requires equal pay based on several factors, assuming the jobs are substantially similar.
Other laws address other workplace compensation issues. Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the American Disability Act (ADA) prohibit discrimination in compensation when that discrimination is based on race or color, national origin, religion, sex and gender orientation, age, and disability.
These laws, unlike the EPA, do not require that one employee’s job is significantly equal to another job. They also do not require that the employee making a claim regarding pay discrimination work in the same establishment as an employee who is used as the basis for the dispute.
The U.S. Equal Employment Opportunity Commission is an independent federal agency that is responsible for overseeing and investigating any complaints of workplace discrimination, including unfair pay. While we often associate unfair pay as a gender imbalance, other reasons for unfair pay are protected by the EEOC as well.
Understanding the Equal Pay Act
The Equal Pay Act requires that employers pay men and women equally for performing equal work. Jobs must be significantly equal but do not need to be identical. In fact, job titles do not matter when comparing equality in work. Instead, the content of the job and work necessary is what determines how similar jobs are.
The Equal Pay Act, sometimes known as the EPA, goes on to describe how It is illegal for employers to pay wages that are not equal to women and men who perform jobs that require closely equal skill, effort, and responsibility, and for work that is done under similar working conditions in the same establishment.
The Equal Pay Act defines the qualities as thus:
- Skill
- Measured by the cumulative factors necessary to perform the job, such as ability, education, training, and experience. Skill refers to what the job requires, not what skills the individual employees possess.
- An example is that janitorial jobs are equal as per the EPA even if one of the employees in questions has an advanced degree in humanities, because that degree is not required for the job.
- Effort
- Refers to the amount of exertion – both mental and physical – required to perform the job.
- A good example is an assembly line, on which many employees work, both men and women. All employees receive the same payment because they are assembling machine parts with the same amount of effort. The only exception to this is the person at the end of the assembly line, who must also lift the final product off the line – which requires more physical exertion.
- Responsibility
- Defined as the degree of accountability built into the job.
- For example, a salesperson who has the responsibility of issuing extraordinary discounts and returns has more responsibility than a salesperson who can only issue standard discounts to customers.
- Working conditions includes two factors:
- Physical surroundings, such as ventilation, temperature, and fumes
- Hazards, such as X, X, and X
- Establishment
- Defined as the brick-and-mortar place of business, which may only be a portion of an entire company or an enterprise consisting of many locales of business.
When an employer is correcting an illegal pay differential, the employer may not reduce the pay of any employee. Instead, the lower paid employees’ compensation must be increased to meet the higher paid employees’ compensation.
Examples of illegal compensation discrimination per Title VII, ADEA, and ADA
Collectively, Title IV of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit discrimination on the basis of many factors, including age, sex, disability, race, color, national identity, and mental or physical disability. This discrimination extends to unequal pay.
Such compensation discrimination can occur in endless situations and incidents and isn’t limited to a single one-size-fits-all situation. Some examples of illegal compensation discrimination include:
- An employer maintains a compensation policy that could adversely impact employees in a way that is not job-related nor consistent with business necessary. The employer, for example, could provide extra compensation or benefits to employees who are “heads of household”, even though this is not relevant to the job. This policy may mean that men are earning more, as men may be more likely to be heads of household.
- An employee with a disability earns less money than a similarly positioned employee who doesn’t have a disability. The employer may not provide a reason, or if the employer has provided a reason for the differential, it may be deemed unsatisfactory.
- An employer conducts a job evaluation study which suggests the levels of compensation for various positions. The employer pays its white male employees in accordance with the suggested compensation scale but pays its women and non-white employees a lesser amount.
- An employer retaliates against an employee who has filed a discrimination charge or is seeking compensation reimbursement against the employer.
Is it illegal for an employee to receive higher compensation?
No, it is not illegal for individual employees to receive a higher compensation, but there are stipulations. Employers can increase an individual employee’s compensation as long as they are based on non-discriminatory factors, such as seniority, quantity or quality of work produced, and/or merit. This higher compensation is known legally as “affirmative defenses”.
Importantly, the onus of proving that these increased compensations apply to specific individuals lies with the employer.
Actions to take when facing unfair pay
As an employee facing an unfair pay situation, there are some steps you can take in an effort to raise your compensation.
- Know your rights. Study up on the federal, state, and local laws that govern your employer to determine whether any apply to your situation.
- Track your raises, benefits, and other compensation. Perhaps you earn a yearly raise or cost of living adjustment, but you surmise that it may be less than other employees. Track what you have earned each year and keep a record of this in a personal, non-workplace setting.
- Get your union involved. Are you part of a labor organization or union? These collective groups may be able to answer your questions or provide counseling on how to build a case for unequal pay as discrimination in the workplace.
- Talk about it. Talking about pay often feels inherently awkward. Our culture sometimes makes it seem that we shouldn’t talk about how much money we earn, and some companies go so far to ask that employees avoid discussing salary and earnings – though they cannot legally prevent it. Talking about it more openly may create feelings of shame or anger, but you may, importantly, receive some information that a colleague in a similar position makes significantly more than you.
- Ask your superiors about it. Once you’ve studied up, you may have some real questions that deserve real answers. If you have a boss or other superior that you have a trusting working relationship with, you may be able to seek answers.
- Research your politicians. Local and state politicians are responsible to their constituents, and you may find that some changes in laws could behoove your situation. Laws that address equal pay, minimum wage, childcare, and more may need to be evaluated or proposed to help close the wage gap.
- Speak with a labor attorney. A lawyer who specializes in workplace discrimination and unequal pay can provide legal guidance on how to handle this situation and whether to seek justice.
- Sue your employer. This decision is not one to take lightly, as it is a serious matter and can cost a lot of time and money. In order for an employer to justify a disparity in pay, the employer must be able to prove that there is a well-functioning system based on seniority, merit, quantity or quality of output, or another factor that is not covered by anti-discriminatory practices.
- Find an ally. Should you pursue serious legal action, the process can take severe mental and emotional tolls. Find someone you can speak with about the process, whether it’s a trusted friend or a professional therapist.
Employers can also take pre-emptive actions to improve the pay of their female employees, which can help continue the conversation and contribute to a wider adoption of equal pay in practice. Some suggestions include:
- Creating structures for women in a company to move into male-dominated jobs or departments, including what the pay looks like at each level
- Protecting female workers from pregnancy and motherhood discrimination
- Providing paid medical leave and paid family leave
- Promoting fair scheduling practices so that women and mothers don’t feel that they must shirk their non-work responsibilities to perform well at work
- Communicating support for woman in the workplace both verbally as well as through fair and equal compensation
California Sexual Harassment Attorney has many years of experience in fighting workplace discrimination across the State of California. We pride ourselves on our experience and knowledge in this field, and we want to assist you in understanding unfair pay as a form of workplace discrimination.
We take the time to understand your situation and concerns, and we’ll provide the knowledge you need to make the best decision for you. We will provide professional help and guidance at every step of the way, even if you opt for legal action. Call our sexual harassment lawyer at 800-905-1856 to get started today.
