The Equal Employment Opportunity Commission's renewed interest in enforcing the Equal Pay Act may stir new legal debates over some of the law's ambiguous terms, Jones Day attorney Alison B. Marshall said during a session of the Society for Human Resource Management's Employment Law and Legislative Conference March 12.
“The Equal Pay Act is receiving a tremendous amount of attention from the EEOC,” Marshall told attendees, pointing out that the commission has designated pay equity a top priority in its strategic enforcement plan for fiscal years 2013-2016.
But she said the law has some “ambiguity in its terms,” such as “within any establishment” and “equal work,” which can create many opportunities for open questions and legal discussions on enforcing the law.
In fiscal year 2012, EEOC filed only two lawsuits under the EPA and received 1,082 charges alleging violations. The law, which is an amendment to the Fair Labor Standards Act, is codified at 29 U.S.C. § 206(d). The commission also enforces pay equity under Title VII of the 1964 Civil Rights Act.
Under the EPA, the comparison is between employees working at the same “establishment,” Marshall explained. “That technically means the same distinct physical place,” she said. “EPA seems to narrow the scope of an establishment, compared to Title VII cases.”
Some courts, however, have opted instead “to look at how integrated” the operation is, Marshall said. For example, a court may find that a drugstore chain where pharmacists are all “managed on a regional basis and compensation is set on a regional basis is an integrated operation,” Marshall said.
Potentially, “the courts will say it's a single establishment. It doesn't always mean a distinct physical place. It is going to be a case-by-case analysis,” she said.
“The key issue in most EPA cases is whether the comparators are performing equal work,” Marshall said, adding that the burden of proof lies on the plaintiff to show that the positions are “equal.”
“The courts have been really focusing on what does it mean to be substantially equal,” she said. “Equal does not mean identical.” The job duties need only be “substantially equal.”
When conducting this analysis, Marshall said, courts look at the content of the job as performed and do not simply rely on job descriptions and job titles. Judges litigating EPA cases are “interested in the skills required for the job and not what a particular employee brings to the job,” she said.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)