Employees often don’t like to share information about salary. Some employers even try to forbid it to prevent hard feelings in the workplace. But the secrecy around compensation also allows women to be paid less than men, without anyone realizing it. What can you do if you find out this is happening to you? Is it ever legal for women to be paid less than men for the same work?

In this blog post, I will review the Ninth Circuit Court of Appeals opinion, Rizo v. Yovino, and the exceptions included in the Equal Pay Act. I will explain when the Equal Pay Act makes it legal for women to be paid less than men, and what employees can do to see if those exceptions apply to them.

The Equal Pay Act Protects Against Wage Discrimination

The federal Equal Pay Act ensures that men and women are paid the same compensation for the same work. This doesn’t mean that every server, assembly line operator, or attorney needs to be paid exactly the same wage. But it does mean that women must be paid as much as men for substantially equal work. The Equal Pay Act includes all forms of compensation, including:

• Salary
• Hourly wage
• Overtime pay
• Bonuses
• Stock options
• Profit sharing and bonus plans
• Life insurance
• Vacation and holiday pay
• Expense allowances
• Hotel accomodations
• Travel reimbursement
• Other benefits

In determining whether the EPA has been violated, it is the content of the job that counts, not the title. Courts will look at:

• The skill, experience, and education required to do the job
• The physical or mental exertion needed to complete tasks
• The accountability employees have, including direct reports and additional assigned tasks
• Working conditions including physical surroundings and potential hazards
• Other positions within the same business establishment

If an employee believes the EPA has been violated, he or she can file a claim in federal court directly. However, many violations of the Equal Protection Act also amount to gender discrimination under Title VII of the Civil Rights Act. These claims must be filed with the EEOC first, so many employment discrimination attorneys will take EPA cases through the EEOC’s investigation and voluntary settlement process to preserve those claims. If the court finds that an employer willfully violated the Equal Pay Act, the employee could be awarded back pay, raises or additional benefits, penalty fees, attorney fees, and costs.

Exceptions That Make it Legal for Women to Be Paid Less Than Men

A plaintiff in an Equal Pay Act lawsuit only has to prove that she was paid less than her male coworkers for substantially the same work. But that doesn’t mean that every case ends there. Employers can avoid paying damages if they are able to show their compensation fits into one of four exceptions that make it legal for women to be paid less than men:

1. A seniority system
2. A merit system
3. A compensation system based on quantity or quality of production
4. “A differential based on any other factor other than sex.”

What the last exception means was the topic of a recent Ninth Circuit case, Rizo v. Yovino. The opinion is currently under consideration by the entire en banc panel of the Ninth Circuit. Aileen Rizo was a math consultant for the Fresno County pubic schools. After working there for a time, she discovered that her male counterparts were all paid substantially more than she was.

The district used a “Standard Operation Procedure 1440” to set starting salaries of management-level employees like Rizo. The procedure laid out 12 levels with steps within each. A new employee’s salary was set on the step 5% above his or her last salary. For Rizo, that meant she was paid the lowest starting salary, or $62,733. But others in the same position came in at more than $80,000.

The school district admitted that it paid its male math consultants more than Rizo, but said that its procedure was “based on any other factor other than sex”, specifically the employee’s past wages. The EEOC said that wasn’t enough, because it ran the risk of perpetuating discriminatory wage disparity between men and women across the industry.

The Rizo court said that “an employer could maintain a pay differential based on prior salary (or based on any other facially gender-neutral factor) only if it showed that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as its other practices.'” The school district had argued the business purposes supporting its business policy included:

• Objectivity in calculating starting salaries
• Encouraging candidates to leave their current jobs to receive a 5% pay increase
• Preventing favoritism and ensuring consistency in application
• The judicious use of taxpayer dollars

But the District Court hadn’t weighed the validity of those purposes, or whether the school district had applied them reasonably, so the Ninth Circuit sent the case back for a more thorough consideration.

What to Do If You Are Facing Wage Discrimination

The Equal Pay Act does a lot to protect the victims of wage discrimination. It puts the onus on the employer to show any discrepancy is excusable. It also allows complainants to go straight to federal court, without pursuing administrative remedies first. However, if you have a claim under the EPA, you need to be prepared for your employer’s defense. That’s where an experienced employment discrimination attorney can help.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you prepare your case to stand up to industry defenses. If you believe that you are being paid less than your counterparts because of your gender, contact Eisenberg & Baum, LLP, today to schedule a free consultation.