What is the Equal Pay Act (EPA)?

The Equal Pay Act (EPA), passed by Congress in 1963, prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."   

You are not required to demonstrate that your job is identical to another position, but rather you must show that the two positions are "substantially equal" in skill, effort and responsibility.

When is there a violation of the Equal Pay Act (EPA)?

The Equal Pay Act (EPA) is violated if an employer pays wages to an employee at a rate less than the rate at which it pays wages to employees of the opposite sex.  The work performed must require equal skill, effort, and responsibility, and must be performed under similar working conditions.  

In other words, a violation occurs when your employer pays you lower wages than to substantially equivalent employees (those who perform similar type work) of the opposite gender under similar circumstances.  You need not prove that the pay disparity was done intentionally because of your gender.

When does the Equal Pay Act (EPA) not apply?

The Equal Pay Act (EPA) makes it illegal for an employer to pay unequal compensation to those of different genders for equal work, except where such payment is made pursuant to:

a)                   a seniority system;

b)                  a merit system;

c)                   a system which measures earnings by quantity or quality of production; or

d)                 a differential based on any other factor other than sex. 

The fact that male employees are offered more work than female employees may constitute a violation of any number of federal and state employment discrimination statutes, e.g. Title VII, New York State and City laws, but the fact that they are offered more work does not form the basis of an Equal Pay Act (EPA) claim.

When must I bring a claim under the Equal Pay Act (EPA)?

A claim under the Equal Pay Act (EPA) must be commenced within two years of its accrual, or three years of its accrual if the violation is willful. 

Under New York State Labor Law, which is substantially similar to the Equal Pay Act (EPA), you may bring a claim within 6 years of your claim’s accrual.

When is an employer’s failure to pay equal pay willful?

An employer's violation of the Equal Pay Act (EPA) is willful or reckless within the meaning of the Equal Pay Act (EPA) if the employer either knew or showed reckless disregard for the law.  You need not show that an employer acted with intent to discriminate or in bad faith. 

Willfulness cannot be found on the basis of mere negligence or on a completely good-faith but incorrect assumption that it was complying with applicable laws.  If an employer acts unreasonably, but not recklessly, in determining its legal obligation, its actions will not be considered willful.

What must I prove to prevail in an Equal Pay Act (EPA) claim?

To prove a violation of the EPA, you must first establish a prima facie case of discrimination by showing:

a)     the employer pays different wages to employees of the opposite sex;

b)     the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and

c)      the jobs are performed under similar working conditions."

Under the EPA, proof of your employer's discriminatory intent is not necessary for you to prevail on your claim.  The Equal Pay Act (EPA) creates a type of strict liability, i.e. no intent to discriminate need be shown.  In other words, a prima facie showing gives rise to a presumption of discrimination.

Once you make out a prima facie case under the Equal Pay Act (EPA), the burden shifts to your employer to show that the wage disparity is justified by one of the affirmative defenses provided under the Act:

• a)     a seniority system;

• b)     a merit system;

• c)     a system which measures earnings by quantity or quality of production; or

• d)     a differential based on any other factor other than sex. 

To successfully establish the "factor other than sex" defense, your employer must also demonstrate that it had a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.

Following such proof by your employer, you may counter the employer's affirmative defense by producing evidence that the reasons your employer seeks to advance are actually a pretext for sex discrimination.  That is, your employer’s reasons are false.

What types of damages can I recover under the Equal Pay Act (EPA) if I prove my case?

If you succeed in your Equal Pay Act (EPA) claim, the law provides your right to reinstatement or promotion (if appropriate), and the payment of the wage/salary differential.  If the violation is found to be willful, a Court may order the doubling of the lost wages as additional damages.  Reasonable attorney's fee and the payment of expenses associated with the action are also permitted.