Today’s topic is the Equal Pay Act of 1963. I’ll jump right in. Even in 2023 America, there is still a wage gap between men and women. That gap exists even when you control for every imaginable factor. Take two pharmaceutical sales reps. One man, one woman. Same company. Same product line. Different but demographically similar territories. Similar performance in terms of revenue, performance against quota, etc. I would bet $10,000 that the woman was paid less. Because she probably is. The sad truth is that women in America earn less money than men even when they do the same work and produce the same results. Enter the Equal Pay Act of 1963.
Many employment lawyers focus on Title VII. Title VII is the landmark civil rights and labor law passed in 1964 that prohibits discrimination on the basis of race, color, religion, or sex in employment, voting, and public accommodations. Title VII is much broader than the Equal Pay Act. Title VII is also – in my view – much weaker than the EPA. The EPA does one thing and one thing only: It prohibits wage discrimination on the basis of sex. And it is powerful weapon for fighting back against the gender pay gap. In many ways, the Equal Pay Act is much stronger than Title VII.
First, the Equal Pay Act doesn’t just apply to wages. It applies to wages, bonuses, equity, benefits, etc.
Second, and unlike Title VII, the Equal Pay Act does not require an employee to first file a charge of discrimination with the EEOC. This is a huge distinction and a huge advantage. In my experience, the EEOC / charge / administrative process just allows corporate defendants to play the delay game. There’s no threat of a plaintiff immediately filing a lawsuit. There’s at least a 6 month delay there while the EEOC “investigates”. That does a couple things for corporate defendants. (1) It removes the immediate threat of a lawsuit, bad publicity, etc.. (2) It gives the company a long time to get its story straight.” If you’re an employee or a lawyer who represents employees in these types of cases, neither of those factors operate to your benefit.
Third, the pathway to trial is easier in Equal Pay Act cases vs. Title VII cases. Courts have repeatedly stated that corporate defendants in EPA cases face a heavy burden at the summary judgment stage. For non-lawyers out there, summary judgment is the phase in a case where the court can grant judgment in favor of either party without a need for trial. In the employment context, courts frequently grant summary judgment in favor of corporate defendants. But not in the context of Equal Pay Act cases. In EPA cases, the law strongly favors employees.
Fourth, the Equal Pay Act requires courts to award double damages unless an employer that their gendered pay gap was a product of a “good faith” mistake. So let’s take a hypothetical: Say there is a gap of $50,000 per year in compensation and the company has no good faith defense. The employee can recover that delta (or difference) going back 3 years. That’s $150,000. And if the employee prevails at trial, that amount typically gets doubled: So $300,000.
Fifth, nothing prevents an employee from pursuing both an Equal Pay Act claim and a Title VII claim, with each claim strategically deployed in the most advantageous fashion. And although Title VII claims require employees first go through the EEOC, that doesn’t prevent immediate pursuit of the Equal Pay Act claim and subsequent pursuit of the Title VII claim (via amendment or otherwise).
Sixth, the Equal Pay Act also prohibits retaliation. And that’s where things get really interesting. There’s a Circuit split here. The 11th Circuit (which covers Florida) limits EPA retaliation damages. But in some Circuits, plaintiffs are able to get punitive damages on an EPA retaliation claim. That creates a huge wild card / risk for corporate defendants and insurance companies.
The Equal Pay Act has a number of other provisions. But those are my highlights. If you believe that you are not being paid equally to your male colleagues, feel free to call our office. A member of our team would be happy to assist you.
Pollard PLLC is a law firm based in Fort Lauderdale, Florida that represents employees in a variety of employment cases. The Firm’s founder Jonathan Pollard has appeared in or on The New York Times, Wall Street Journal, Bloomberg, PBS News Hour, NPR, The Guardian, The Times (London), and more. He has 75,000+ followers on LinkedIn where he frequently posts his commentary on law, business, and life. The Firm can be reached at 954-332-2380.
