In 1963, Congress passed the Equal Pay Act in an effort to equalize the largely disparate pay received by men and women who were performing the same job. The Act was an amendment to the Fair Labor Standards Act of 1938. Under the Act, Congress specifies that employers may not discriminate on the basis of sex by paying women less than men, and vice versa, when they are performing "equal work." The Act predates Title VII of the Civil Rights Act of 1964. Although the functions of the two Acts overlap, the Equal Pay Act remains in full force.

Scope of the Act

The Act applies to nearly all employers, including state and local governments and labor unions.

What is Equal Work?

Under the Act, men and women who are performing "equal work" are entitled to receive equal pay. Courts have found that "equal work" depends upon the actual work performed, not upon the job title. Thus, employees who are performing the same job functions, but are given different titles, must still be paid the same. The Act also states that "equal work" is work that requires equal skill, effort, and responsibility. It is also work that is performed under similar working conditions. In order to be considered "equal," the jobs need only be "substantially equal," not identical.

Exceptions to Equal Pay Requirement

The Act specifically states that differences in pay between sexes based upon the following systems are not illegal:

• 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 under the Act

Although the Equal Employment Opportunity Commission (EEOC) is tasked with enforcing the Act, an employee is not required to submit a claim to the EEOC prior to filing an action under the Act. This procedure differs from that of Title VII. The EEOC may, however, file its own action, including a criminal action, against an employer that is violating the Act.

If an employee is able to prove a violation of the Act, he or she is likely entitled to back pay and an injunction to prevent the discrimination from continuing. In order to prove a violation under the Act, the employee is not required to show an intent to discriminate. If, however, a willful violation is proven, the usual two-year statute of limitations is extended to three years. This means that an employee may recover up to three years of back pay instead of two for a willful violation.

The Act specifically provides that an employer may not remedy an unequal pay situation by lowering the pay of the higher paid worker. Instead, the lower paid worker is entitled to a pay increase.

The Interaction Between the Act and Title VII

As stated above, the provisions of the Act and Title VII overlap. Nonetheless, they are distinct causes of action with distinct remedies. Many employees choose to file actions under both statutes. As long as an employee is not receiving a double recovery, he or she may recover damages under both laws.

Under the Act, an employee may recover only if he or she received unequal pay for equal work. Title VII, on the other hand, provides a more general remedy for all forms of sex discrimination in the workplace. Unintentional discrimination may also be more difficult to prove under Title VII than under the Act.

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