The Equal Pay Act, at 29 U.S.C. 206(d)(1), is a narrow, content-based comparison with four defenses and one absolute remedy rule.
The comparison
It bars paying employees of one sex less than the opposite sex, within any establishment, for equal work on jobs requiring equal skill, effort and responsibility and performed under similar working conditions.
Each element does work:
- Skill, effort and responsibility must be equal; working conditions similar.
- Within the same establishment. The establishment limitation is written into the text, so "substantially similar work across all establishments nationwide" is wrong.
- Job content, not job titles.
- The federal statute does not adopt comparable worth measured by job evaluation points.
Exactly four exceptions
A differential is lawful if it is made under:
- A seniority system.
- A merit system.
- A system which measures earnings by quantity or quality of production.
- A differential based on any other factor other than sex.
These are employer-borne affirmative defenses under Corning Glass Works v. Brennan, 417 U.S. 188 (1974).
The traps: dropping the quantity-or-quality-of-production exception and counting three; importing Title VII's BFOQ and business necessity, which are not EPA exceptions; and listing market-rate differentials, prior salary history or a collective bargaining agreement as if they were statutory exceptions.
You may never level down
Section 206(d)(1) states that an employer paying a differential in violation of the subsection shall not, in order to comply, reduce the wage rate of any employee. Compliance means raising the lower-paid employee's wage.
So when a CFO proposes cutting the higher-paid male machinist's rate to match the female machinist's, reject it and raise hers. Downward equalization is the error the statute forecloses, whatever it saves. Freezing both rates and waiting for merit increases leaves the unlawful differential in place while the freeze runs. Reclassifying one position is a paper fix that changes titles rather than job content.
Carry this: equal skill, effort and responsibility, similar working conditions, same establishment; four defenses; never level down.