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The EEOC Speaks: Pay Discrimination – the EPA v. Title VII

By Fiona W. Ong - Shawe Rosenthal LLP

May 11, 2022

So, as you may or may not know, I periodically review the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law for fun. (I know, I need a better hobby). Among the summaries of recent EEOC decisions and federal court opinions related to the federal workplace, a digest might also contain an in-depth article on a particularly hot area of interest to the EEOC. Although the articles are targeted towards federal agencies, as I’ve previously noted, they offer private employers a roadmap as to the EEOC’s thinking. And the most recent article is just chock full of interesting tidbits about pay discrimination – a topic of particular focus for the Biden administration. In fact, the article is so jam-packed, I’m going to break it up into a few different blog posts, starting off with this one, which covers the EEOC’s discussion of the  Equal Pay Act v. Title VII. I’ve boiled down the EEOC’s discussion into a more direct comparison of the differences.

What Does Each Law Do?

•    EPA: Prohibits pay discrimination and retaliation based on sex.
       o    Men and women working in the same establishment must be given equal pay for equal work (meaning substantially equal, not identical).
    Title VII: Prohibits pay discrimination and retaliation based on sex, as well as race, color, religion, and national origin. (By the way, remember that the Supreme Court has said that “sex” includes sexual orientation and gender identity, so you can throw those under Title VII as well).
       o    “Similarly situated” employees must be given equal pay.  As the EEOC notes, this is a more relaxed standard than the EPA’s “substantially equal” work requirement.
          Employees do not need to work in the same establishment.

How Are Violations Established?

•    EPA: The burden is on the employer. If the employee shows that there is a differential in pay between sexes, the employer must then prove that one of the following four legitimate reasons for the pay differential applies: a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or any factor other than sex. The reason must actually (not just possibly) explain the differential.
•    Title VII: According to the EEOC (but perhaps not the courts), the burden is on the employer. Typically in a Title VII case, the employee bears the ultimate burden of proof – once the employee shows that they are being paid differently than a similarly situated co-worker, the employer must then offer a legitimate, non-discriminatory reason for the differential, but the employee then must prove that the employer’s reason is a pretext for discrimination. However, the EEOC takes the position that the EPA’s assignment of the ultimate burden of proof to the employer also applies to Title VII pay discrimination claims.
•    By the way, a violation of the EPA is usually also a violation of Title VII. However, Title VII is broader than the EPA, so there may be pay discrimination claims under Title VII that are not violations under the EPA. (For those of you Venn diagram aficionados – it’s not overlapping circles, but rather the little EPA circle completely inside the bigger Title VII one). The EEOC provides examples of Title-VII-but-not-EPA claims, such as: if no member outside of a complainant’s protected class holds an equal, higher paying job; a similarly-situated, but unfairly paid, employee works in a different establishment; or an employer segregates or classifies protected class workers in lower paying jobs or limits their opportunities to secure higher paying jobs.

What Damages Are Available Under Each Law?

•    EPA:
       o    Back pay and a raise. The back pay goes back for two years, unless there is a willful violation, in which case it goes back for three years.
       o    Liquidated damages in an amount equal to back pay, unless the employer proves that it acted in “good faith” and had reasonable grounds to believe that its actions did not violate the EPA.
    Title VII:
       o    Back pay and a raise. The back pay goes back for two years from when the employee filed their EEOC complaint (which is an administrative requirement before filing a lawsuit).
       o    Compensatory damages (but not liquidated damages)
       o    Attorneys’ fees and costs
•    By the way, the EEOC considers liquidated damages to be compensatory in nature, so if an employee brings both a EPA and Title VII claim, they cannot get both EPA liquidated damages and Title VII compensatory damages, because that would be duplicative.

Next time, I’ll review the EEOC’s discussion of intersectionality and “sex-plus” discrimination in the context of pay discrimination. I know – how ever will you wait? (It’s actually pretty interesting – at least for nerds like me…)

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