The Equal Pay Act’s (EPA) protections and limitations

The Equal Pay Act of 1963 (“EPA”) prohibits covered employers from compensating male and female employees differently for performing equal work.

It says:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

29 U.S.C. §206(d)(1).

Although originally enacted to protect women, the EPA protects men as well.

The EPA also prohibits employers from retaliating against employees who complain about EPA violations or testify in a proceeding involving an alleged EPA violation.

The EPA does not prohibit gender discrimination other than directly with respect to compensation.

Because the EPA is a part of the Fair Labor Standards Act (“FLSA”), the courts often rely on statutory and case law under the FLSA in interpreting the EPA. Courts also rely on the EEOC’s interpretive regulations.

Affirmative Defenses

The EPA provides the following affirmative defenses, which allow for differences in wages:

  • A seniority system;
  • A merit system;
  • A system which measures earnings by quantity or quality of production; or
  • A differential based on any other factor other than sex.

Remedies

The EPA provides for the following remedies:

  • Back pay.
  • Equitable relief for retaliation victims.
  • Liquidated damages in the same amount as the back pay award.
  • Attorneys’ fees and costs.