It sounds simple enough. People performing the same work should be paid equally. It’s hard to argue against if you have a sense of fairness; it’s also part of state and federal law.  It’s illegal to unequally pay workers and subject them to unequal terms and conditions of employment on the basis of someone’s protected class (race, gender, religion, color, disability, age, etc.). But how do you measure the work of different people to see if it’s equal? Might there be legitimate, non-discriminatory reasons why one person, performing the same work, is paid more than another?

One of the laws that deals with this issue is the federal Equal Pay Act (EPA), which addresses unequal pay based on an employee’s gender. The EPA mandates equal wages for male and female employees “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Wages include all compensation, including benefits.

Are different jobs equal enough to come under the law?

The jobs at issue need only be substantially equal, not identical. Unequal compensation could be justified if the employer establishes the pay differential as due to a seniority, merit, or incentive system, or any factor other than gender.  This is according to the Equal Employment Opportunity Commission (EEOC), the federal agency enforcing the EPA.

Looking at an EPA claim to decide how similar comparative work is, the EEOC suggests figuring out whether the jobs generally involve equivalent tasks, skills, effort, responsibility, working conditions, and are similarly complex or challenging.

• Skill: The experience, ability, education, and training needed to do the job. Skills needed to do the job are relevant, the skills the employees have are not
• Effort: The physical and/or mental exertion necessary to do the job
• Responsibility: The accountability required to perform the job or the seriousness of the consequences if the work is not done or performed incorrectly
• Working conditions: The physical surroundings including temperature, fumes, and ventilation as well as the hazards of performing the work
• Establishment: A distinct physical place of business, not an entire operation that has several places of business. Sometimes physically separate locations could be one establishment if those in a central site hire employees, set their wages, and send them to different work locations

Other factors to be considered, as long as they’re legitimate and not invented to cover up illegal, discriminatory motives, include:

• Job titles and formal job descriptions
• Whether the work is in different departments or units
• Minimum qualifications, such as a specialized license or certification
• Differences in experience and education

When comparing two jobs that appear substantially equal, is a significant portion of the tasks performed the same way? If not, then the work is not substantially equal. If so, do these workers perform extra duties making the work significantly different?

Unequal pay could result from an explicit, direct policy or through indirect, artificial barriers that could make it difficult or impossible for those of a protected class to advance, thus lowering their wages. These barriers could be discriminatory promotional decisions, performance ratings, decisions on how work is assigned, training that benefits only favored employees, or a practice of steering protected class members into lower-paying jobs and/or limiting their ability to transfer to better jobs with higher compensation.

What do both sides need to establish?

In an EPA claim,

• The plaintiff (the party filing the lawsuit) would need to show he or she received a lower wage than was paid to an employee of the opposite sex in the same establishment and they perform substantially equal work (in terms of skill, effort, and responsibility) under similar working conditions
• The employer could defend itself by showing the pay is equal, the work is not substantially equal, or the situation is the result of a seniority, merit, or incentive system, or some legitimate, nondiscriminatory reason other sex

These defenses shouldn’t be accepted at face value. You would have to look at whether these systems

• Were adopted with a discriminatory intent
• Have predetermined criteria for measuring seniority, merit, or productivity (not criteria that management can make up as they go along, to help or hinder an individual)
• Were communicated to employees
• Have been consistently and evenly applied to all employees
• Were, in fact, the reason for the difference in pay

Under the EPA, and also under New Jersey’s Law Against Discrimination, a successful plaintiff could be awarded back pay to cover past lesser wages, a raise to increase future pay, compensatory damages for pain and suffering caused by intentional discrimination, and punitive damages to punish the employer for intentional discrimination committed with malice or reckless indifference to the law, and counsel fees and costs to make the injured plaintiff fully whole. In some situations, a judge could order changes in how workers are paid to prevent future harm to employees not involved in the lawsuit.

Get help when you need it

As you can see, an unequal pay claim is complicated with many moving parts. The fact you don’t make as much as someone else is just the start. If you have concerns or questions about possible illegal, discriminatory practices when it comes to wages, contact the employment attorneys for workers at Kingston Law Group, 609-683-7400, or get in touch with us online to set up a near-term and reduced fee initial consultation at our Central Jersey location in Kingston. 

We will listen to your facts, explain the law, and recommend your best pathways to monetary and social justice.  Call us today. You will be glad you did.