Two of the main federal laws that help ensure female employees are paid the same as their male counterparts are Title VII of the 1964 Civil Rights Act and the Equal Pay Act (EPA).  Although both statutes cover pay discrimination issues, some significant differences exist that you need to know about since these differences can have a big impact on your case.  These variances come into play in traditional gender pay discrimination claims, as well as in glass ceiling discrimination cases.

The Equal Pay Act

For employees in the same workplace, the EPA requires that men and women receive equal pay for equal work.  According to the EEOC, “the jobs need not be identical, but they must be substantially equal.”  And a court will look to the content of the job you do, not the job title, to decide if the jobs are “substantially equal.”  The EPA covers all kinds of pay, for example:

• salary,

• overtime pay,

• bonuses,

• stock options,

• vacation and holiday pay,

• reimbursement for travel expenses, and

• benefits

“If there is an inequality in wages between men and women,” the EEOC dictates that “employers may not reduce the wages of either sex to equalize their pay.”

Proving an EPA violation

To establish a prima facie case under the Equal Pay Act, the plaintiff must show that:

1. she was “doing substantially equal work on the job, the performance of which required substantially equal skill, effort, and responsibility as the jobs held by members of the opposite sex”;

2. “the job was performed under similar working conditions”; and

3. she was “paid at a lower wage than members of the opposite sex.”

Cornish v. District of Columbia, 67 F. Supp. 3d 345, 360-61 (D.D.C. 2014) (citations omitted).

Once the EPA claimant has met that burden, the employer has the burden of demonstrating the applicability of one of the four affirmative defenses identified in the EPA:

1. a bona fide 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 factor other than sex.

See 29 U.S.C. § 206(d)(1).

Title VII of the 1964 Civil Rights Act

Title VII also makes it illegal to discriminate based on sex in pay and benefits. If you have an Equal Pay Act claim you thus may also have a claim under Title VII. Title VII prohibits discrimination in compensation and other terms and conditions of employment, so it is broader than the EPA. Title VII also prohibits discrimination in compensation or other aspects of employment based on race, color, religion, or national origin.

Major differences between EPA and Title VII pay discrimination claims

Although Title VII and the EPA have many similarities, they also have notable distinctions that may affect your potential lawsuit (all of the points below assume the claim is against a private employer):

• Under the EPA, you are not required to file an EEOC Charge of Discrimination before going to court, but you must file a charge for a Title VII pay discrimination claim;

• The time limit for filing a case in court under the EPA is within two years of the discriminatory pay practice (or three years if the violation is willful), whereas a Title VII pay discrimination charge must be filed with the EEOC within 180 or 300 days (depending on what state you live in) of the discriminatory pay practice;

  • NOTE I:  The Lilly Ledbetter Fair Pay Act extends the statute of limitations for discriminatory compensation claims by clarifying “that a discriminatory compensation decision . . . occurs each time compensation is paid pursuant to the [discriminatory decision].” Pub. L. No. 111-2, 123 Stat. 5 (2009)

  • NOTE II:  You are allowed to file an EEOC Charge of Discrimination for an EPA claim as well, but filing a charge with the EEOC does not extend the two-year time frame for filing an EPA lawsuit.

• Unlike the EPA, no requirement exists under Title VII to prove that your job is substantially equal to that of a higher-paid male employee, nor under Title VII must you work in the same establishment as the male comparator;

• In an EPA claim, your employer will have the burden of proof (not just a burden of production like in a Title VII claim) to establish its EPA defense (seniority system, merit system, production-quota system, or any factor other than sex);

• If you prove your employer willfully violated the EPA, you may receive liquidated damages;

• Title VII’s anti-discrimination provisions cover more protected characteristics (race, gender, religion, etc.) than the EPA, which is limited to gender-based differences.

Other helpful resources

• EEOC Compliance Manual Section on Compensation Discrimination: http://www.eeoc.gov/policy/docs/compensation.html

• Questions and Answers: Compliance Manual Section on Compensation Discrimination: http://www.eeoc.gov/policy/docs/qanda-compensation.html