Download Fighting Pay Discrimination and Unequal Pay at Work

Fighting Pay Discrimination and
Unequal Pay at Work
TOOLKIT
for Advocates & Organizers
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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About ERA
Founded in 1974, Equal Rights Advocates (ERA) is a national civil rights organization
protecting and expanding economic and educational access and opportunities
for women and girls. Through our campaign approach—incorporating public
education, legislative advocacy, and litigation—ERA seeks to assist women and girls
throughout a life-long continuum: ensuring equality in their educational experience,
combating sex discrimination in employment, and advocating to make workplaces
more hospitable to working families. ERA has been a pioneer in advancing gender
equity at work and in schools for decades. From ensuring the passage of the
Pregnancy Discrimination Act and the Family and Medical Leave Act, to arguing
seminal gender rights cases before the United States Supreme Court, ERA is
known for being the home of visionary leaders, unflinching advocates, and hardnosed litigators for justice. ERA is one of the only advocacy organizations nationally
that directly represents women workers in impact litigation from its initial stages all
the way to the Supreme Court.
For more information on ERA’s projects or to get legal help, visit our website at
www.equalrights.org.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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Contents
Introduction.................................................................................................................4
About this Toolkit........................................................................................................5
Pay Discrimination and Unequal Pay at Work: The Legal Backdrop.........................6
Appendix A................................................................................................................28
Intake Questionnaire...............................................................................................28
Appendix B...............................................................................................................29
Research Resources...............................................................................................29
The Law.......................................................................................................................8
Federal Protections Against Gender-Based Pay Discrimination............................... 8
Protection from Retaliation Under Federal Law...................................................... 8
State Law Protections: Equal Pay and Anti-Discrimination Laws ............................ 9
Defining the Problem: What Is Pay Discrimination? ............................................. 10
Appendix C...............................................................................................................30
Warning Signs: Potential Obstacles to a Worker’s Pay Discrimination Claim.........13
There is not an adequate “comparator” to the employee...................................... 13
Appendix E................................................................................................................32
The employer can point to some factor or basis for the pay differential
other than sex................................................................................................... 13
Taking the Next Step: What an Employee Can Do if She is Experiencing Pay Discrimination.................................................................................................................17
Negotiate a Fair Starting Salary........................................................................... 17
Talk to Others in the Field ................................................................................. 19
Practice Having that Difficult Discussion.............................................................. 19
Document Discriminatory Comments and Other Conduct That Could Support a
Pay Discrimination Claim ................................................................................... 19
Review the Employee’s Personnel File ............................................................... 20
Review the Employer’s Written Policies and Complaint Procedures ..................... 20
File an Internal Complaint with the Employer ...................................................... 20
Involve the Employee’s Union ........................................................................... 21
Draft a “To Whom It May Concern” Letter........................................................... 21
Engaging in Direct Negotiations with an Employer............................................... 22
Talk to a Lawyer ............................................................................................... 22
Filing a Title VII Lawsuit: What Comes First.......................................................... 23
Filing a Charge of Discrimination with a Federal or State Agency.......................... 23
FEPA/EEOC Investigation Process...................................................................... 24
Obtaining an Immediate “Right to Sue” Letter...................................................... 25
Filing an Equal Pay Act Lawsuit.......................................................................... 26
Relief and Remedies That May Be Available to a Victim of Pay Discrimination....... 27
Comparing Title VII and the Equal Pay Act..............................................................30
Appendix D...............................................................................................................31
Is It Discrimination?.................................................................................................31
Sample Internal Complaints.............................................................................. 32-33
Appendix F................................................................................................................34
To Whom It May Concern Letter.............................................................................34
Appendix G...............................................................................................................35
Sample EEOC/FEPA Charge............................................................................ 35-37
© 2014 Equal Rights Advocates. All rights reserved.
Introduction
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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ERA’s Tools for Gender Justice Project
ERA has a long history of engagement in community legal education and Know Your Rights training, and decades of
experience providing direct legal services to thousands of low-wage workers through our national free Advice & Counseling
service. Through this experience, we have learned that, 50 years after the passage of civil rights laws designed to ensure
equal employment opportunity and equal pay, far too many working women – especially low-wage workers, women of color
and immigrants – continue to face significant obstacles to fair pay and just working conditions, including:
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Less pay than men for the same or comparable work;
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Exclusion from higher-paying, traditionally male-dominated jobs and occupations;
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Chronic and/or egregious sexual harassment in the workplace;
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Discrimination and penalties for taking time off due to pregnancy and family caregiving responsibilities;
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Retaliation for speaking about pay, or for exercising their legal rights; and
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Deprivation of earned wages (wage theft).
Through our Tools for Gender Justice project, ERA seeks to expand the movement for gender justice, advance gender
equity in the workplace, and improve the economic status of women workers by: (1) increasing workers’ centers’
capacity to engage low-wage women workers; (2) informing and expanding ERA’s direct legal services and impact
litigation on behalf of low-wage women workers; and (3) integrating gender-conscious advocacy into the wage justice
movement.
With these goals in mind, ERA’s Tools for Gender Justice toolkits focus on three of the major barriers to workplace
justice and economic security facing low-wage women workers across the country:
To download other
Know Your Rights materials,
visit ERA’s website at
www.equalrights.org
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Sexual harassment;
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Pregnancy and caregiving discrimination; and
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Pay discrimination and unequal pay based on sex.
Each toolkit provides information, resources, and general tips designed to help leaders and organizers of low-wage
workers improve their own understanding of workers’ rights, employers’ legal obligations, and potential legal avenues
for relief. Each toolkit also includes guidance on addressing and seeking remedies for retaliation that is so often faced
by workers when they seek to exercise or vindicate employers’ violations of their rights. Through dissemination of
these toolkits, ERA hopes to strengthen advocates’ and organizers’ capacities to educate, engage, and empower
women workers, thereby increasing women’s participation and leadership in organizing campaigns and advocacy
efforts. By building awareness of and promoting greater attention to gender (in)justice issues in the workplace, we
seek to help workers hold low-road employers accountable for violations of their legal rights, and improve their ability
to act collectively in order to change the conditions and practices that impede economic justice and advancement for
working women.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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About this Toolkit
The materials in this toolkit are intended to provide information and guidance to advocates from
workers’ centers and membership organizations, community-based organizations, and unions
when they assist their members who have faced pay discrimination and unequal pay in the
workplace.
The toolkit provides:
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■■
Information about the various forms of gender-based wage theft, including unfair differences
between men’s and women’s pay; Discrimination against women in promotion and training
opportunities that impact pay and other forms of compensation; Employer policies that prohibit
or discourage employees from discussing their compensation, salary, wages, and/or other
benefits with coworkers; and employer retaliation against employees who exercise their legal
rights under the federal equal pay laws;
Tools for identifying and addressing compensation discrimination and unequal pay among the
worker you are assisting, and resources for further legal information and other services.
This toolkit is intended to provide general information only, not legal advice. We strongly
recommend that any employee whose rights may have been violated speak with an attorney in
her state.
ERA’s free Advice and Counseling service can assist callers in many languages. Workers can
reach the Advice and Counseling service in two ways:
Telephone: (Toll-free) 1-800-839-4372
Online: www.equalrights.org/legal-help
Because this toolkit is designed to reach a national audience, it focuses on the protections afforded
by federal law. However, most states also have their own laws prohibiting discrimination against
employees, some of which may be more protective or broad than the federal laws discussed here.
Wherever possible, we point out where there are state protections or laws related specifically to
equal pay and wage discrimination that advocates may find particularly helpful or useful.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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Pay Discrimination and Unequal Pay at Work:
The Legal Backdrop
Paying women less than men for the same work has been illegal ever since the Equal Pay Act of 1963 became law.
Under Title VII of the Civil Rights Act of 1964, employers were no longer allowed to pay women less than men, refuse
to hire women, or fail to provide equal training and promotion opportunities to employees “because of” their sex.
Nonetheless, in 2013, women still earned, on average, only 77 cents for every dollar earned by men – a gap that
translates to an average loss to working women of over $11,000 per year, and hundreds of thousands of dollars over
a lifetime.
What is earned for
every $1.00 a
white man earns
$1.00
Women earn less than
men at every level of
education2 and in almost all
occupations, including the
highest- and the lowestpaying jobs.3
$.64
$.55
Earnings Lost in 20114
African-American Women
18,817
$
23,298
$
Hispanic Women
For women of color, the
disparity is even greater.
White Men
1
AfricanAmerican
Women
Hispanic
Women
150 Years and Counting: The Unfinished Business of Achieving Fair Pay, National Women’s Law Center (2013), at pg. 3, available at http://www.nwlc.org/sites/default/files/pdfs/final_
nwlc_equal_pay_report.pdf. See also Rose, Stephen J. and Heidi I. Hartmann. 2004. Still A Man’s Labor Market: The Long-Term Earnings Gap. Washington, DC: Institute for Women’s
Policy Research.
2
NWLC Unfinished Business at pg. 1, note 16; see also GAO, Gender Pay Differences: Progress Made but Women Remain Overrepresented Among Low-Wage Workers (Oct. 2011),
available at http://www.gao.gov/assets/590/585721.pdf. Less educated workers are those with a high school degree or less.
3
Institute For Women’s Policy Research, Fact Sheet: The Gender Wage Gap by Occupation (April 2012).
4
NWLC Unfinished Business at pg. 1.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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Pay Discrimination and Unequal Pay at Work: The Legal Backdrop
Many factors contribute to this persistent inequality, including unconscious bias, occupational segregation (where
women are concentrated in the lowest-paying jobs and underrepresented in many higher-paying ones), lower
starting salaries and positions for women, women’s slower career advancement, the existence of a glass ceiling,
and a lack of institutional support for working families. Some of these problems – like the lack of support for
workers with family responsibilities – call for policy changes that would create new legal rights and protections,
such as universal child care and paid family leave. Other problems – such as paying women less than men and
giving them fewer opportunities to enter and advance into higher-paying jobs – result from employer practices
and decisions that are already illegal but require workers to be aware of their rights and also to have access to
the legal systems through which those rights can be enforced.
This toolkit aims to equip organizers, advocates, and peer leaders at workers’ centers and community based
organizations with the information and guidance needed to help women workers identify and challenge unequal
pay and wage discrimination based on sex. It includes practical advice to help you assist women who may be:
■■
■■
■■
■■
Getting paid less than men for doing the same job or substantially equal work;
Facing discrimination in promotions, assignments, and/or training opportunities that effectively reduces their
pay;
Prohibited or discouraged by their employer from asking about or discussing their salaries or wage rates
with other coworkers;
Retaliated against for exercising their legal rights to equal pay and/or for complaining about discrimination.
Experienced advocates and organizers know that workplace injustices often go hand in hand; one type of
exploitation can hide and/or perpetuate another. Additionally, a woman facing one form of injustice on the job,
like wage discrimination, may also be experiencing other violations of her rights, like wage theft or harassment.
But a worker who feels too disempowered or scared to speak out about one violation of her rights is less likely
to complain – or to know how to complain – about the other. ERA designed this toolkit with that idea in mind.
We want to help advocates and organizers identify those violations that workers may not themselves recognize
or identify on their own, and provide concrete information on how to address them.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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The Law
Protections of Salary
Discussions Under
Federal Law
Federal Protections Against Gender-Based Pay Discrimination
Written or verbal policies that prohibit
or discourage employees from
discussing their pay or benefits with
other employees may violate another
federal law – the National Labor
Relations Act (NLRA). The NLRA
protects the right of employees to
engage in “concerted action,” which
includes discussing wages and other
terms and conditions of employment
with each other.7
■■
If the worker’s employer has a
policy that prohibits or discourages
employees from discussing their pay
with coworkers, or if the worker you
are assisting has been disciplined
for discussing pay with co-workers,
she may want to contact the National
Labor Relations Board (NLRB) to
file a claim. Visit the NLRB website
at http://www.nlrb.gov/ and click
on your state to get the contact
information for your nearest NLRB
regional office. The deadline for filing
a claim with the NLRB for an unfair
labor practice is six months from the
date of the unfair practice.8
Two laws prohibit gender-based pay discrimination by requiring that men and women be given equal pay for equal or
comparable work: Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963 (EPA).
■■
Title VII of the Civil Rights Act of 1964: Title VII bans workplace discrimination based on a person’s race, color,
religion, sex, or national origin. Title VII forbids employers with 15 or more employees from using any of these
protected categories as a basis for firing, failing to hire, or discriminating against an employee with respect to her
“compensation, terms, conditions, or privileges of employment.” Paying women less money than men for performing
the same work is a form of sex discrimination and violates Title VII.
Equal Pay Act of 1963: The EPA also prohibits gender-based wage discrimination. It says that employers must
pay equal wages to employees of the opposite sex who work in the same establishment and perform “substantially
equal” work under similar working conditions.5
Protection from Retaliation Under Federal Law
Both Title VII and the EPA also make it illegal for an employer to retaliate against (or punish) an employee for exercising
his or her rights under those laws.6 In other words, it is illegal for an employer to take negative action against an
employee because he or she:
■■
■■
Complains to the employer about sex discrimination or opposes discriminatory practices;
Files a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or state Fair
Employment Practices Agency (FEPA) (a process discussed below);
■■
Testifies at an EEOC hearing;
■■
Acts as a witness for someone else’s claim of discrimination;
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Files a lawsuit charging an employer with gender discrimination; or
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Testifies or participates in any way in an investigation, proceeding, or litigation under Title VII or the Equal Pay Act.
5
See 29 U.S.C. § 206(d).
6
Title VII § 704(a).
7
See NLRA Section 7 (29 U.S.C. 157), Section 8(a)(1) (29 U.S.C. 158(a)(1)).
8
29 USC § 160(b).
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
You can find out whether there
is such an agency in your
state and link to its website
on the Workplace Fairness
website, located at: http://
www.workplacefairness.org/
stateagencies.
Then click on your state and you
will be directed to a page with
information about employment
laws in your state, including
contact information for the state
FEPA and deadlines for filing
discrimination charges with the
state agency.
9
State Law Protections: Equal Pay and Anti-Discrimination Laws
Many states have enacted separate state laws prohibiting employers from discriminating against employees on the
basis of sex. The majority of states (39 out of 50) have state equal pay laws. Many of these state laws explicitly prohibit
gender-based compensation discrimination, and some are even more expansive than the federal laws described here.
For example, some state discrimination laws cover employers with fewer than 15 employees or provide additional
protections beyond the protections provided by Title VII or the EPA.
Further, several states have laws that prohibit company pay secrecy policies, including California, Maine, Nebraska,
North Dakota, Oregon, South Dakota, and West Virginia. For example, the California Labor Code states that no
employer may require, as a condition of employment, that an employee refrain from disclosing the amount of his or
her wages or discipline, discharge, or otherwise discriminate against an employee who discloses the amount of his or
her wages.9 This law was enacted to protect employees who wanted to discuss some aspect of their compensation,
including possible increase in pay, perceived pay disparities, or the awarding of bonuses, with their coworkers.
For information about state equal pay laws, including state pay secrecy provisions, visit the National Conference of
State Legislatures website: http://www.ncsl.org/issues-research/labor/equal-pay-laws.aspx.
States with
equal pay laws
39
States with laws that prohibit company pay secrecy policies
California, Maine, Nebraska, North Dakota, Oregon,
South Dakota, and West Virginia
9
See California Labor Code section 232 and Grant-Burton v. Covenant Care Inc. (2002) 99 Cal.App.4th 1361 (Cal. Ct. App. 2002).
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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Defining the Problem: What Is Pay Discrimination?
The two federal laws that govern pay discrimination claims, Title VII and the EPA, each define pay discrimination
somewhat differently.
Pay Discrimination Under Title VII
disparate
treatment
theory
focuses on the
employer’s intent, or negative
attitudes toward women
in the workplace.
To show pay discrimination under Title VII, an employee must show that he or she is a member of a “protected class”
and was paid less than similarly situated employees outside of that protected class.10 For example, if the employee is a
woman, the protected class under Title VII would be discrimination based on the characteristic of sex, and that female
employee would have to show that she was paid less than male employees for the same work.
The employer has the opportunity to respond to the employee’s accusation of discrimination by providing a
non-discriminatory explanation for the difference in pay. If the employer leaves the pay disparity unexplained, gives an
explanation that is vague, inconsistent, or not believable, or if the disparity is much greater than accounted for by the
explanation, the employee should prevail on her claims.11
There are two theories or ways in which employees can challenge pay discrimination under Title VII: “disparate
treatment” and “disparate impact.”
The disparate treatment theory of discrimination focuses on the employer’s intent, or negative attitudes toward
women in the workplace. If an employer has a policy or practice that treats a female employee (or a group of female
employees) differently and less favorably than a similarly situated male employee (i.e. it results in lower pay or fewer
raises for the woman or women), this policy or practice could be challenged under a disparate treatment theory.
Examples of Discriminatory Pay Practices That Could Be Challenged Under a Disparate Treatment Theory
■■
■■
■■
An employer has a policy of tying pay raises to a points-based evaluation system, and managers consistently dock women more than men for making the same
mistakes or errors, which results in female employees earning less than similarly situated men.
An employer provides extra compensation to employees who are the “head of household,” and assumes that only male employees are breadwinners, thus
paying men higher wages.
An employer has a top-down procedure for making pay and raise decisions, in which all such decisions are made or approved by a group of managers, most or
all of whom are men. The procedure is based on subjective criteria, and there is evidence that women are being paid less than men in comparable positions with
similar (or less) experience and qualifications. Note, this kind of system could also potentially be challenged under a disparate impact theory, as explained below.
10
11
NWLC Unfinished Business, at p. 2, note 16; see also GAO, Gender Pay Differences: Progress Made but Women Remain Overrepresented Among Low-Wage Workers (Oct. 2011),
available at http://www.gao.gov/assets/590/585721.pdf. Less educated workers are those with a high school degree or less.
Institute For Women’s Policy Research, Fact Sheet: The Gender Wage Gap by Occupation (April 2012).
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
disparate
impact theory
focuses on the
impact of an employer’s
practices and policies
on a protected class
of employees.
Defining the Problem: What Is Pay Discrimination?
The disparate impact theory of discrimination focuses on the impact of an employer’s practices and policies on a
protected class of employees (i.e. women), not on whether the employer is acting with discriminatory animus or intent
toward employees in that group. If a compensation practice or policy is gender neutral on its face — meaning that it
does not single out one sex for different treatment, as would a policy saying that only people who get pregnant will be
docked for taking time off for purposes of calculating pension benefits — but it has a significant negative impact on one
sex, it may be unlawful (discriminatory) under Title VII.
For example, if an employer sets pay on the basis of a seemingly neutral factor like the employee’s prior salary, this policy
or practice may be discriminatory if it can be shown to have a negative impact on the pay rates of female employees,
and the employer cannot show that relying on prior pay is job-related and consistent with business necessity.
Even where an employer can prove that such a business necessity exists, it is still possible for an employee to prove the
practice is discriminatory if she can show there is an alternative policy or practice that would achieve the same business
purpose without discriminating against women and the employer has failed to adopt it.
Examples of Discriminatory Pay Practices That Could Be Challenged Under a Disparate Impact Theory:
■■
■■
■■
11
An employer has a job assignment system where supervisors are allowed to determine subordinates’ duties and location. At this company, women typically get
assigned to low-performing stores or departments with low sales volume, while men get assigned coveted departments or positions with greater pay and/or
commissions potential.
Promotion decisions are contingent upon employees agreeing to a traveling or transfer requirement. Because childcare responsibilities fall disproportionately on
women, such a practice adversely affects working mothers and results in fewer women seeking or obtaining higher-paid positions.
A performance appraisal system provides that employees who took job-protected leave in the last year must be docked points, regardless of whether they hit other
performance benchmarks. Since women are much more likely to take leave for pregnancy and/or family caregiving than men, this sort of performance evaluation
system would be an example of a company-wide policy that is “gender neutral” on its face, but may have a disparate impact on women.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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Defining the Problem: What Is Pay Discrimination?
Pay Discrimination Under the Equal Pay Act
The Equal Pay Act of 1963 prohibits employers from paying employees of the
opposite sex different amounts for doing the same jobs. Unlike an employee
bringing a disparate treatment pay discrimination claim under Title VII, a woman
suing under the EPA is not required to prove that her employer had intent to
discriminate in paying her less than a man. Instead, to prove a violation of the
EPA, a female employee has to show that she has been paid less than a man for
performing “substantially equal” work in the “same establishment.” Employees
do not need to have identical jobs, but the jobs must require substantially
the same skill, effort, and responsibility, and must be performed under similar
working conditions.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
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Warning Signs: Potential Obstacles to a
Worker’s Pay Discrimination Claim
There is not an adequate “comparator” to the employee
To prevail on a claim of pay discrimination under the Equal Pay Act, an employee must show that she is being paid
less than a male counterpart for substantially equal work. The two jobs do not have to be identical and an employer
cannot just assign different titles or change the job titles of women workers in order to pay them less than men doing
substantially the same work. But a significant difference between responsibilities, qualifications or authority of the
worker you are assisting and that of the person with whom she is comparing herself could provide her employer with
an adequate justification for the pay discrepancy.
Pay differentials among employees are permitted under both the EPA and Title VII when based on: seniority or merit
systems; the quantity or quality of production; or “any factor other than sex,” such as education, experience, training,
ability, or degrees or certifications held that are relevant to the job, where the qualification is related to job performance
or benefits the business. Such justifications could undercut an employee’s claim of discrimination.
The employer can point to some factor or basis for the pay differential
other than sex
Under the EPA, even if a worker can demonstrate that she is being (or was) paid less than male employees for equal
work, the employer may defend itself, and can avoid liability, by proving that the pay differential is based on any “factor
other than sex.” Some courts have permitted interpretations of this affirmative defense to include factors like a male
worker’s stronger salary negotiation skills or higher previous pay – things which could themselves be based on or
related to sex, thereby undermining the whole purpose of the statute.
While most courts across the country have interpreted the EPA as requiring the “factor other than sex” to be job-related
and adopted for some legitimate business reason, some do not even hold employers to that relatively low threshold.
Therefore, worker advocates should anticipate this defense will be asserted, and look for ways to show that the “factor
other than sex” offered to explain or justify unequal pay for the same work is: (a) applied inconsistently (or not at all), (b)
has no bearing on employees’ actual job performance or capacity to do the job in question, and/or (c) is itself rooted in
sex stereotypes or is related to sex.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
RED FLAGS
The following situations would prevent the worker you are assisting from pursuing
a pay discrimination claim under Title VII or the EPA.
1
Claim is barred due to statute of limitations
Every legal claim has a deadline within which it must be brought, called a statute of limitations.
Even if the worker you are assisting does not wish to sue her employer, if she wishes to pursue
a claim under Title VII, there is a statute of limitations within which she will have to file a complaint (or charge)
with the Equal Employment Opportunity Commission, the federal agency charged with investigating claims of
workplace discrimination. She has either 180 or 300 days after the last act of discrimination to file an EEOC
charge, depending on the state in which the discriminatory issue arose. If the worker you are assisting
fails to file a charge with the EEOC before the 180 or 300-day deadline, she will be barred from
enforcing her rights or filing a lawsuit under Title VII.
The deadlines for filing a claim under the EPA are different from those of Title VII. The EPA does not give a
specific time by which an employee must file a claim, but it does limit the time period for which an employee
can recover damages. An employee who proves that she has been subjected to a violation of the EPA is only
entitled to recover the amount of unpaid wages equal to the amount of the unlawful difference in pay for the
period beginning two years prior to the date her complaint is filed, or three years if she can prove the
employer’s violation of the law was “willful,” meaning that the employer knowingly paid the employee less
pay for equal work. In practical terms, this means that if an employee only finds out that she was paid less
than a man who had her same position sometime in the past, and she has since left that job or started being
paid equally, she may or may not be able to recover anything under the EPA, since she cannot recover any
wages owed due to violations that occurred more than two or three years ago. This is different from Title VII,
which puts a strict time limit on when an employee must complain about pay discrimination (within 180 or 300
days from the last or most recent discriminatory paycheck), but does not limit the amount of back pay that a
worker can recover if she proves that she was subjected to pay discrimination over the course of many years.
Regardless of whether an employee seeks to make a claim under Title VII or the EPA, pay close attention to
when the violations occurred. If the facts of her situation arose too far in the past, she may be time-barred
from pursuing legal action.
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Fighting Pay Discrimination and Unequal Pay at Work Toolkit
RED FLAGS
The following situations would prevent the worker you are assisting from pursuing
a pay discrimination claim under Title VII or the EPA.
2
Employer is too small for Title VII to apply
If the employer did not employ fifteen (15) or more employees for each day in at least 20 calendar
weeks of the current or preceding year, that employer is not covered by Title VII. This means that
its employees are not protected against sex (or other types of) discrimination under this law, and may not assert
legal claims of pay discrimination under Title VII. However, such an employee may still have a claim under
the Equal Pay Act or state anti-discrimination laws.
Any employer who is covered by the Fair Labor Standards Act (FLSA), the federal minimum wage and overtime
law, is also covered by the Equal Pay Act, since the EPA is actually part of the FLSA. While there is no minimum
number of employees required for an employer to be covered under FLSA, there is a requirement that either the
employees or the employer be “engaged in commerce.”
The FLSA makes it unlawful for “any person” to retaliate or discriminate against any employee because the employee has filed a
complaint or engaged in other protected activity under the law. This means that even if an employer is not subject to FLSA’s minimum
wage and overtime requirements, it still cannot retaliate against an employee who complains about (what she reasonably believes to
be) violations of the Equal Pay Act! An employee who faces such retaliation could bring a retaliation claim under the FLSA, even if the
employer’s conduct about which she complained is ultimately determined to be lawful.
Even if an employer is not covered by a state anti-discrimination statute or local ordinance, you can still try to
advocate on the worker’s behalf by directly engaging with the employer and/or by helping the worker to act in
concert with other employees to protest the unfair practices.
15
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
RED FLAGS
The following situations would prevent the worker you are assisting from pursuing
a pay discrimination claim under Title VII or the EPA.
3
The worker is an “independent contractor,” not an “ employee.”
All of the laws covered by this toolkit confer rights on employees. People who work as independent
contractors – that is, people who are self-employed, or running their own business – are not protected
by any of these laws. However, many low-wage workers are misclassified as independent contractors, when
they are working for someone else and not actually in business for themselves. Employers often deliberately
misclassify workers to avoid paying payroll taxes and prevent employees from exercising their rights. Many
low-wage workers who have been identified or treated as “independent contractors” are not even aware that
they are actually employees, and are entitled to all the rights and protections granted by the laws described in
this toolkit, even if their employer says they are not.
1099’d: Misclassification of Employees as “Independent Contractors”
To determine whether someone is or is not a bona fide independent contractor, labels do not matter. Merely calling a worker a
“contractor” or saying that she is “self-employed” does not make it true. Sometimes, employers do not bother calling workers
anything, but may be treating them as though they are not employees by:
–– Paying in cash, with no deductions or withholding for taxes, and/or no wage statements (check stubs)
–– Giving workers an IRS Form 1099, instead of a Form W-2, at the end of each year, to report their total compensation
–– Paying workers “by the job” instead of by the hour, or other increment of time
–– Paying workers only once per month or less often, instead of at least twice monthly
For more information about misclassification of employees as independent contractors and to learn more about what you (and workers)
can do about it, check out these fact sheets and resources from the National Employment Law Project: 1099’d: Misclassification
of Employees as “Independent Contractors” (April 2010), available at http://www.nelp.org/page/-/Justice/1099edFactSheet2010.
pdf?nocdn=1, and NELP Employment Relationships Checklists, available at http://www.nelp.org/page/-/Justice/Employment%20
Relationship%20Checklists.pdf
16
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
17
Taking the Next Step: What an Employee Can Do
if She is Experiencing Pay Discrimination
Negotiate a Fair Starting Salary
It is important to ensure that an employer is paying the worker you are assisting fairly from the beginning, because an
employee’s starting salary often sets their pay scale with that employer. If a female worker starts with a salary or wage
that is much lower than that of similarly situated male employees, it may be difficult to convince an employer to adjust
her pay later on.
Equal Rights Advocates’ Advice & Counseling Inquiry Service
If you or an employee has questions about pay equity issues or potential pay discrimination
by an employer, call ERA’s toll-free, confidential hotline at
1(800) 839-4372 or visit www.equalrights.org/legal-help
Do your homework! Investigate the salary ranges for the job in question and/or what male
employees in similar jobs are being paid.
Whether the worker you are assisting is experiencing discrimination in pay because of her sex, needs help negotiating
her starting salary, or comes to your organization seeking assistance with a subsequent salary adjustment, start by
investigating the issue further to determine what similarly situated men are earning.
In order to determine whether an employee is being paid less than she deserves (and if so, what amount her employer
should be paying her) and whether she may have a claim for sex-based compensation discrimination, you must first
determine what a fair salary would be, based on factors like the employee’s skills, experience, and location. There are
lots of helpful websites that provide information about salary ranges for particular jobs and many of these websites can
provide information based on particular geographic locations, industries, positions, and years of experience, among
other relevant factors. See Appendix B.
Gather as much information as you can find about what the employer pays similarly situated male coworkers, along
with information to help you determine what other employers typically pay employees in the same/similar positions
(based on job title, location, experience, and education).
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
18
Negotiate a Fair Starting Salary
In researching potential pay discrimination, remember to count benefits and other forms of
compensation.
Under the EPA and Title VII, wages include all forms of compensation. Therefore, try to find out what additional benefits
the worker’s employer offers to other employees in similar positions, and/or what benefits are commonly offered to
similarly situated employees in that field or industry. It is important to research benefits because this will give you a more
accurate understanding of any potential compensation disparities that may exist.
Having a list of potential benefits that the worker you are assisting could reasonably ask for will help prepare her for
subsequent negotiations with her employer. While an employer may be unable or unwilling to adjust an employee’s pay
to the amount she asks for, the employer might be willing to provide other forms of compensation to help supplement
an employee’s base pay.
Consider the following options:
■■
Professional development opportunities
■■
Health benefits
■■
Professional memberships or certifications
■■
Life insurance or other insurance
■■
Education/tuition reimbursement or other educational assistance
■■
Cleaning or gasoline allowances
■■
Deferred compensation
■■
Hotel accommodations
■■
Relocation assistance
■■
Reimbursement for travel expenses
■■
Profit sharing plans
■■
Sign-on bonus
■■
Vacation pay and holiday pay— If the employee already has a vacation
planned, ask for it to be paid time off even if she would not have accrued
enough vacation by the anticipated date
■■
Stock options
■■
Commissions
■■
Company car
■■
Pay grade adjustments — Encourage the employee to ask to be moved to
the bottom of a higher pay grade. Even if the pay is not significantly greater
initially, this could give her more room for raises later.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
19
Talk to Others in the Field
Encourage the worker you are assisting to talk to trusted coworkers, employees of competitors,
a mentor, or to attend informational interviews with people who work in the same industry
to learn what other individuals who work in the same or similar positions are earning. These
individuals might also provide her with advice about specific compensation demands to make
and how to navigate salary discussions. Another resource could be finding someone within
the company who has access to employee compensation information (like someone in the
human resources department) who can be trusted. S/he may be a good person for the worker
to talk to about what pay range would be appropriate for someone in a position with similar
qualifications and experience.
Practice Having that Difficult Discussion
Encourage the employee you are assisting to role-play a compensation negotiation with her
boss. Brainstorm with her about different messages or approaches she can use to present
the strongest case for a better package. Think of potential tough questions, and prepare and
practice responses to them.
Document Discriminatory Comments and Other Conduct That
Could Support a Pay Discrimination Claim
Having a written record of discriminatory behavior can be very helpful in assessing a worker’s
legal options, and will be particularly important if she decides to take legal action in the future.
Encourage the employee to write down any discriminatory statements she has heard from
supervisors, co-workers, key decision makers, or others who work for the same employer.
Statements (especially by managers) demonstrating discriminatory or stereotypical attitudes
about women may be helpful in supporting a pay discrimination claim by showing that a culture
of discrimination influenced pay decisions. Write down any other information that relates to
salary discussions, employer policies for giving raises and setting pay, and any other relevant
information. Make sure to record dates, places, times, and possible witnesses. Encourage the
employee to request that her co-workers write down pertinent information they saw or heard;
especially if they, too, are experiencing compensation discrimination. Remember that others
may read this written record at some point. Therefore, it is important to keep entries as objective
as possible, and keep out any descriptions of her emotional reaction to what happened. When
documenting discrimination, it is best to stick with just the facts. It is also a good idea to keep
the record at home or in another safe place.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
20
Review the Employee’s Personnel File
An employee has the right to see her personnel file. If the worker you are assisting works for a private employer in
certain states, she has the right to request and receive copies of everything in her personnel file that she has signed.
This file may contain performance evaluations, information relating to how the employee’s pay was set, and other
information that can inform her negotiations and discussions with her employer. It may also provide useful evidence
if she decides to pursue subsequent legal action. The human resources department or a union representative should
have information about how to obtain a personnel file for review.
Review the Employer’s Written Policies and Complaint Procedures
Review an employee’s employment manual or handbook to find out what policies are in place to protect workers. Look
for policies relating to: compensation, assignment of duties, promotion processes, and the prohibition of discrimination.
Find out what the complaint procedures are for how to file a sex discrimination complaint, and pay close attention to
deadlines for filing grievances or complaints.
Caution!
Using the internal grievance or
complaint process does not
extend the deadlines by which
a worker must file a formal
complaint of discrimination
(or equal pay violation) with a
government agency or the court.
Additionally, even if an employee
cannot find an attorney, he or she
can still file a complaint with the
Equal Employment Opportunity
Commission, which can conduct
an investigation at no cost to the
employee.
File an Internal Complaint with the Employer
Filing an internal complaint can be a significant step if an employee is interested in working with her employer to resolve
the situation informally (without involving outside parties). Filing a written complaint is preferable to submitting a verbal
one, because a written complaint provides a record indicating the employee’s attempt to resolve the problem. If the
worker you are assisting decides to take legal action in the future, such an attempt would weigh in her favor.
A complaint should be filed with a supervisor, human resources department, or the individual or department within the
organization who has the power to correct the pay inequity. Look for instructions on what content to include in the
complaint, how to file it and with whom, and your employer’s process for investigating and resolving the complaint.
The complaint should answer questions like:
––
––
––
––
––
––
––
––
––
––
What happened?
Who was involved?
When did the action occur?
Has it happened before? How many times? How often? How long has this been going on?
Where did this take place?
Were there any witnesses?
What effects did this have on the employee (economic and emotional)?
What has the employee done about this so far?
Is anyone else having the same problem?
What does the employee want done about it?
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
21
Involve the Employee’s Union
If the worker you are assisting belongs to a labor union, get a copy of the collective bargaining agreement and see if it
discusses the problems she is experiencing. The same way that a non-union employee should file an internal complaint
of discrimination with her employer, a union member should consider filing a grievance alleging sex discrimination
through her union. She would want to include the same kinds of facts discussed in the complaint section above. Even
when an employee uses a union’s grievance procedure, she must still file a complaint with a government agency if she
wants to file a lawsuit in federal or state court.
Some unions are better than others when it comes to advocating on behalf of their female members. One way the
worker can prevent gender discrimination on the job is to foster discussions with her union about women’s issues in the
workplace. You could encourage her to: start a women’s committee, enlist the support of other union members when
she experiences a problem on the job, or run for office to become part of the union leadership.
Draft a “To Whom It May Concern” Letter
Some employees may want an informal or more anonymous resolution to their workplace situation, which does not
involve an outside investigation or formal proceedings. Even where an employee is willing to go through the legal
avenues available to her, a “To Whom It May Concern” (TWIMC) letter may be a good advocacy tool to use early in the
process, especially where the employer appears to be uneducated or purposely ignorant about laws prohibiting sex
discrimination and retaliation in the workplace.
ERA often uses such letters as a first step in representing clients to help make their employers aware of the employee’s
rights and the employer’s legal obligations. Typically, a TWIMC letter contains information about the employee’s rights
under the law, how the employer is covered by the law, and what the employer must do to comply. If the employee
believes that the employer would behave differently (that is, take corrective or preventative action) if it were made aware
of its duties under the law, writing a TWIMC letter on an employee’s behalf may be an effective and less adversarial way
to resolve the situation. For an example of a TWIMC letter regarding unfair pay practices, see Appendix F.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
22
Engaging in Direct Negotiations with an Employer
Drafting a demand letter,
which details how the
employee would like to
resolve the situation, can
prove a very useful tool for
a quick resolution of an
employee’s grievances.
Another way to resolve the situation is for the complaining employee to engage directly with the employer about the
issues she would raise in a formal charge or lawsuit. Many workers’ center advocates are familiar with the tool of the
demand letter. As you probably know, drafting a demand letter, which details how the employee would like to resolve
the situation, can prove a very useful tool for a quick resolution of an employee’s grievances. Note, however, that
because the situation is based on an employment discrimination claim, having a lawyer or legal organization like ERA
write the letter may prove more effective. Some potential remedies to include in a demand letter are described below.
Rather than limiting the demands for redress to just the individual worker’s grievances, consider demanding the
implementation of measures to improve working conditions for all employees at the worksite. Such demands may
include: reversal or elimination of policies that prohibit or discourage employees from discussing compensation;
greater access to salary and other compensation information for all employees; and more transparent and objective
measures for: evaluating employees’ job performance, setting their initial rates of pay and subsequent raises, and
making promotion decisions.
Talk to a Lawyer
Seeking the advice of an attorney may be useful even if the worker does not think she wants to file a lawsuit. An
attorney may be able to advise her about her legal rights and options, write a letter on her behalf, or review a contract
or agreement between her and her employer. An attorney may also be able to help the worker you are assisting resolve
her situation without filing a lawsuit, depending on the circumstances.
If the worker decides to file a lawsuit against her employer, union, or apprenticeship program, she will want to find a
lawyer to represent her. While it is possible for an individual to file a lawsuit on her own behalf (she is called a “pro se
litigant”), it is generally very difficult for an employee to successfully bring a lawsuit without a lawyer.
To find an attorney, start by looking within your organization’s network for referrals. If the employee is a union member,
her union may also have some attorney recommendations for attorneys that specialize in employment discrimination
law (particularly sex discrimination claims).
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
23
Filing a Title VII Lawsuit: What Comes First
Whether an employee has a strong enough claim to take formal legal action will always
depend on the specific facts of her case. However, before the employee can file a lawsuit
under Title VII, she must first “exhaust [her] administrative remedies.” This means that she
must file a formal charge of discrimination with the applicable federal or state agency in
charge of enforcing the law. That is why, even if the complaining employee initially expresses
no interest in pursuing legal action or filing a lawsuit, it is still important to be mindful of the
applicable statutes of limitation (discussed above) for filing a charge.
These filing deadlines are critically important: If an employee misses the filing deadline,
she may lose all rights to take legal action against her employer for discrimination. As stated
above, the fact that an employee has sought internal remedies (e.g., filed a complaint with
human resources at her workplace) does not change the deadline for filing a Title VII complaint
with the EEOC or state agency. It is often advisable to pursue both procedures – filing an
EEOC charge and filing an internal complaint with the employer – at the same time.
Filing a Charge of Discrimination with a Federal or State Agency
The EEOC is the federal agency charged with investigating violations of Title VII. In states
that have corresponding laws to Title VII, there will also be a state agency resembling the
EEOC, which is responsible for processing and investigating discrimination claims that violate
the applicable state law. Such agencies are referred to as state fair employment practices
agencies (FEPAs), and each has its own procedures and timelines for filing a discrimination
charge. Some FEPAs have work sharing agreements with the EEOC offices in their states,
which allow complaints filed with one agency to be cross-filed with the other under certain
circumstances.
When filing a charge with either a state FEPA or the EEOC, a complaining employee may
take one of two paths. She can opt to have the agency conduct its own investigation of her
claims, or she can request an immediate “Right To Sue” letter. The pros and cons of each
option are discussed below.
As explained above, many state laws protect more classes of people against discrimination
or may require a lower number of employees for the law to apply to a particular employer.
Therefore, deciding whether to apply state or federal law is a strategic and fact-based
evaluation of an individual employee’s situation.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
24
FEPA/EEOC Investigation Process
While an agency is investigating
a discrimination complaint,
the statute of limitations is
tolled, which means the ticking
clock that determines the time
constraints within which an
employee must bring legal
claims in court is STOPPED
until the investigation process
is over, and the agency issues
a right-to-sue.
The EEOC and state FEPAs conduct investigations of discrimination complaints in similar ways. Each serves as a neutral
fact-finding agency and sets out to obtain relevant information about a complainant’s allegations. An investigation may
include interviews of the complaining employee, the person who carried out the discriminatory compensation practice,
and other interested parties and witnesses, and the gathering of related documents and other evidence. Depending on
the agency’s backlog, a case may take weeks or months to be assigned to an investigator, and thus, the entire process
can take many months or even years to complete.
One benefit of going through the agency investigation process is that it affords workers and their advocates an opportunity
to learn more about the employer’s side of the story, and determine where the most important factual disputes and
missing pieces of information lie. Although the EEOC does not have to turn over the employer’s written responses
and position statements to a complaining employee or her attorneys during the investigation, those documents may
eventually come to light if the employee files a lawsuit or special request.
Most important, what the employer says to the EEOC can be brought up and used against it in any future legal action.
If, for example, an employer later changes its version of facts or its explanation for taking certain actions in a lawsuit,
(something an employer is likely to do to avoid liability for discrimination) what the employer disclosed to an investigative
agency like the EEOC would be very helpful to an employee litigant. But remember: this works both ways! It is equally
important that workers be careful and thorough about the content of their responses and communications with state
or federal agencies that are investigating their complaints.
Role of Agencies in Enforcing Anti-Discrimination Laws
In addition to investigating discrimination charges, state and federal agencies (including the EEOC) also have the power to bring enforcement actions directly
against employers on behalf of the state, or U.S. government. They usually only do this when complaints involve groups of plaintiffs and/or a problem or industry
that the agency has identified as an enforcement priority. Sometimes advocates may want to reach out to the agency early on to encourage their involvement
if the case presents a broader, systemic problem – a pattern or practice of discrimination, for example – and the agency has indicated a particular interest in
tackling the type of discrimination at issue or the case will require more resources than the employee’s advocates have. The state or federal agency may also be
able to bring enforcement actions in cases where the employees are having difficulty finding private lawyers to represent them. In cases where the EEOC files a
lawsuit against an employer on behalf of one or more workers who complained, the agency itself, acting as a representative of the federal or state government,
becomes a party to the lawsuit, and the workers become the “charging parties.” As charging parties, the complaining employees have the right to obtain private,
outside counsel to represent their individual interests and to “intervene” in the lawsuit in order to make sure those interests are served in the litigation.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
25
FEPA/EEOC Investigation Process
The issuance of a RTS letter
is not an assessment of the
employee’s claims. It should not
be taken as an endorsement by
the agency of how successful
an employee’s claim may be in
court.
Another benefit of following the investigation path is that it generally leads to an attempt at mediation or “conciliation”
(a process followed by the EEOC before initiating litigation against an employer). Mediation is a voluntary process
where a neutral third party helps both sides negotiate with one another to resolve the dispute. Mediation may result in
a settlement, which is a written agreement by which both parties agree to abide. Such a resolution is often faster and
less costly than litigation. However, if mediation is ultimately unsuccessful, or if parties do not wish to participate in the
process, the agency will continue its investigation.
Upon completion of an investigation, the agency will make a determination regarding the merits of a complainant’s
claim (sometimes called a “reasonable cause” determination or finding) and will then separately issue the complaining
employee a “Right to Sue” (RTS) letter. This letter is given to every complainant, and serves as proof that she has
“exhausted her administrative remedies” as required by law. Thus, the RTS letter enables a worker to file a lawsuit in
state or federal court. The EEOC attaches a 90-day statute of limitations within which a legal complaint must be filed
in court, while a state FEPA may grant more time to allow for a complaint to be filed in court.
The issuance of a RTS letter is not an assessment of the employee’s claims, and does not reflect any evaluation of
how strong those claims are. A RTS letter should not be taken as an endorsement by the agency of how successful
an employee’s claim may be in court. Rather, the RTS letter merely signals the end of the agency’s obligations to the
complainant and confirms that s/he has exhausted her administrative remedies (and can therefore proceed to file a
complaint in court).
Obtaining an Immediate “Right to Sue” Letter
Rather than asking the agency to conduct an investigation and make findings on the merits of a complaint, an employee
may seek an immediate Right to Sue letter from the agency, which clears the way to immediately file a lawsuit in court.
However, because the employee’s right to sue expires in a relatively short time period after the letter is issued (90
days in the case of a RTS letter from the EEOC), this option is generally advisable only when an employee has already
retained a lawyer to prosecute the lawsuit on her behalf, and/or she wants to put extra pressure on an employer to
respond to a written demand.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
26
Filing an Equal Pay Act Lawsuit
To file a claim for unequal pay under the federal Equal Pay Act, different rules apply. Under the Equal Pay Act, an
employee does not need to file an EPA charge of discrimination with the EEOC. Instead, she is allowed to go directly
to court and file a lawsuit. The deadline for filing a lawsuit under the EPA is 2 years from the day an employee received
the last discriminatory, or unequal, paycheck. This is extended to 3 years in the case of willful discrimination, or cases
where the employer knew of the discrepancy. Any internal complaints made by an employee will not extend these
deadlines within which she must file a formal charge or lawsuit under the EPA. In addition, filing a Title VII charge will
not extend the deadline for filing an EPA lawsuit.
Although filing an EEOC charge is not required in order to file a lawsuit for EPA claims, it is still a good idea to file an
EEOC charge as soon as an employee becomes aware that the EPA and/or Title VII may have been violated.
Why? Both the Equal Pay Act and Title VII make it illegal to discriminate based on sex in the payment of wages and
benefits. So if you have an Equal Pay Act claim, you may also want to file a Title VII claim, and in order to pursue a
Title VII claim, you must file a charge with the EEOC first. Thus, it is advisable to file an EEOC charge as soon as you
become aware that you may have potential Title VII and/or EPA claims in order to fully protect your rights. If an EPA
charge is filed with the EEOC, the procedure for filing is the same as for charges brought under Title VII (see above).
Figuring out how much time you have to file a charge is complicated, and you may want to consult an attorney to
discuss all of your potential claims and applicable filing deadlines for each claim.
For more information, visit the EEOC website at www.eeoc.gov or call its toll free number at (800) 669-4000.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
27
Relief and Remedies That May Be Available to a Victim of Pay Discrimination
Every employee is protected by laws that prohibit discrimination. When an employer commits pay discrimination against
an employee, that employee may be entitled to certain remedies, or ways that can help correct the wrong that she
suffered due to the gender-based pay inequity. The potential remedies an aggrieved employee may recover are slightly
different under Title VII and the Equal Pay Act. Generally, the remedies available under Title VII in cases where a worker
prevails on her discrimination claims include:
■■
■■
■■
■■
■■
■■
Compensation for the economic losses suffered by the employee as a result of the pay discrimination, such as
the difference between what she earned and what she would have earned had she been paid equally to her male
counterparts for work she has already performed (called “back pay”).
Compensation for the economic loss suffered during the time period between judgment and reinstatement (or in
place of reinstatement) in cases where the employee was discharged for discriminatory or retaliatory reasons, such
as for complaining about the pay discrimination (called “front pay”).
Compensation for non-economic harm suffered by the employee as a result of the discrimination. Examples of this
include physical or emotional pain and suffering, loss of reputation, loss of mental capacity, and loss of enjoyment of
life (called “compensatory damages”).
A monetary sum awarded to the employee that is meant to punish the employer for engaging in an egregious
violation of discrimination law (called “punitive damages”).
Non-monetary relief, such as changes to the employer’s practices, policies, or procedures, to help prevent future
violations and ensure that other employees are not subjected to the same type of discrimination (called “injunctive
relief”).
The reasonable attorneys’ fees and out-of-pocket litigation costs that have been expended by a worker (or advanced
by her attorneys, if they represent her on a contingency basis), which the employer may be ordered to pay separately
from and in addition to any monetary amounts they are ordered to pay as damages (called “attorneys’ fees”).
Generally, the remedies available under the Equal Pay Act include back pay (the amount of wages owed due to an
unlawful difference in pay) and, if the violation was willful, liquidated damages equal to the amount of back pay awarded.
Employees who succeed in proving a violation of the EPA may also recover their attorneys’ fees, expert fees, and court
costs. Compensatory and punitive damages are not available under the EPA.
In addition to these general categories of relief, workers and advocates may wish to seek specific remedies to help a
worker recover from the discrimination and/or be made whole. For example, a positive (or even a neutrally-worded)
letter of reference does not cost the employer any additional money, but could be valuable to someone who has been
forced to seek other employment, as it could enable her to list her prior employer in applications and résumés without
fear of retaliation or a negative reference.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix A
28
Appendix A
Intake Questionnaire
Initial Considerations:
■■
■■
■■
■■
■■
Where does the employee work?
How many people are employed by the employer? (The answer to this question
will determine whether Title VII applies)
■■
–– If there are fewer than 15 employees at the moment, ask the employee
whether the employer hires seasonal workers who worked five months out
of the current or preceding year or more, and see if that total number is 15 or
more.
■■
When did the employee learn of the difference in pay between her wages and
those of her male counterpart?
How did the employee learn about the difference? Can she prove that there is
a difference, or is the wage differential merely hearsay?
Are more women other than the employee affected by the wage discrepancy?
Facts Significant to a Pay Discrimination claim:
■■
What are the male comparator’s duties?
■■
What is the comparator’s job title? What is his level of experience? Education?
■■
What are the employee’s qualifications? How much experience does she have?
What is her highest level of education?
■■
How do her experience and education compare to her male counterparts?
■■
How long has the employee worked for the employer?
■■
How long has the comparator worked for the employer?
■■
■■
If the employee and her comparator have the same level of education and
experience (or if she has more of either than he does) is the employee aware of
another reason why the male employee is paid better than she is?
■■
■■
■■
■■
■■
Is there another female employee doing similar work to employee you represent
who is paid more than she is being paid?
Does the employee receive certain benefits or perks (health insurance, more
vacation time, a company car etc.) that might account for her lower wages?
Does the employee get performance evaluations? How does she measure up
when compared with other employees? With her comparator?
Has the employee inquired with her employer about the pay differential? What
was the employer’s response?
Has the employee made a complaint about the pay differential? How did the
employer respond? Was there an investigation? A finding?
Has the employee experienced any negative treatment after her inquiries about
pay? If so, what happened?
Does the comparator work at the same establishment?
Is the employee aware of any disparaging remarks made by other employees/
supervisors about her and/or other female employees and/or women in
general? If so, who made them? Are there witnesses to this conduct?
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix B
29
Appendix B
Research Resources
Organization
URL address
Description
America’s Career InfoNet
www.acinet.org
Connects individuals to employment, training, and financial assistance opportunities in all 50 states. Search salary and hourly
wage ranges by zip code and occupation category. Sponsored by the U.S. Department of Labor. A mobile app is available.
US Department of Labor Occupation Outlook
(O-Net)
www.onetonline.org
Find out the skills, abilities, and work activities that are essential to a specific occupation. The database contains information
for over 900 occupations.
Salary.com
www.salary.com
Personalized salary reports, articles, and surveys. See what employers are paying based on job title, location, experience level
and education.
Payscale
www.payscale.com
Compensation information for employers and individuals. 7 million+ profiles in their database. Free comparison report
showing an expected compensation range, common benefits and job opportunities.
Glassdoor
www.glassdoor.com
Find employee opinions about a company’s work environment along with details of pay and benefits. CEO approval ratings and
reviews of job interviews.
Occupational Outlook Handbook
www.bls.gov
The Bureau of Labor Statistics’ Occupational Outlook Handbook includes detailed job descriptions and wage estimates for
nearly every job imaginable. Each description includes information on required education and certification, as well as salary
and occupational outlook data.
Jobnob.com
www.jobnob.com
Users get free and unlimited access to view real salaries being paid at specific companies. Jobnob has millions of individual
salaries in their database and lists them by company and by job.
SimplyHired
www.simplyhired.com
SimplyHired’s salary calculator enables the user to compare salaries with others in the same profession, locally and nationally.
They take their data from their job search engine, which has millions of job listings.
Indeed
www.indeed.com
Job listing search engine, with salary information for jobs matching your search. Graphs that break down national salary
trends and salaries of jobs with related titles.
SalaryExpert
www.salaryexpert.com
Online salary reports factor in salary information, benefits and cost of living according to location.
Career Builder
www.cbsalary.com
A salary calculator created by CareerBuilder that includes the salary range and average for each different job in a particular
location for free. There are also articles about salary negotiation and other related topics.
Vault
www.vault.com
Current and former employees provide compensation information for their employers. Vault salary reports include salary
surveys by industry as well as employee surveys for over 5,000 companies.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix C
30
Appendix C
Comparing Title VII and the Equal Pay Act
Issue
Equal Pay Act
Title VII
Employer coverage
Covers virtually all employers
Covers employers with 15 or more employees
Minimum requirements to establish a legal
claim
Complaining employee must show:
Complaining employee must show:
1) Employer pays unequal wages to employees of the opposite sex;
1) Intent (for disparate treatment) OR
2) Who work in the same establishment; AND
2) Supposedly neutral policy or practice that affects one group in a protected
class over others (disparate impact).
3) Perform substantially equal* work.
*Substantially equal = Jobs requiring significantly equal skill, effort, and
responsibility, and which are performed under similar working conditions.
No evidence of intent required.
How an employer can defend against a legal
claim, and how a complaining employee can
counter such defenses
Employer must show that the pay differential is justified by one of following
reasons:
1) Seniority level;
2) Merit;
3) Quantity or quality of production; or
4) A factor other than sex
For a Disparate Treatment claim:
Employer must provide a legitimate, non-discriminatory reason for the pay
differential. Then the complaining employee has the opportunity to show
that the reason provided by the employer is an excuse for the discriminatory
reason.
For a Disparate Impact claim:
If no such justifiable reason exists, the employer can be found legally
responsible for the discrimination.
Employer must show that the seemingly neutral policy or practice is “job
related and consistent with business necessity.” Then the complaining
employee has the opportunity to show that an alternative policy or practice
exists to serve the employer’s business need without having negative impact
on the protected class. If she shows this, the employer can be found legally
responsible for the discrimination.
Yes.
Yes.
Employees are protected from retaliation, or punishment, for making
complaints about unequal pay or other compensation.
An employer cannot punish an employee because he/she opposed
compensation discrimination and/or participated in complaint proceedings or
an investigation of such discrimination.
A factor other than sex = education, experience, training, ability, certifications
held, or other factors that benefit the business or are related to job
performance.
Retaliation Provision?
No “equal work” standard – No requirement that claimant’s job be
“substantially equal” to a higher paid comparator, and no requirement that
claimant and comparator work in same establishment.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix D
31
Appendix D
Is It Discrimination?
Factors To Consider When Evaluating Pay Differentials
Between Male and Female Employees To Determine Whether
Differences Are Justified:
If a female employee is concerned about pay discrimination, she should try to
identify one or several male coworker(s) whose jobs and qualifications are very
similar to her own. If these male coworkers are working in the same job as she is,
or a job that is substantially equal to hers, and have similar job-related qualifications
and experience, these male coworkers are appropriate “comparators.” This
means that she can compare her pay to theirs for purposes of establishing a
discriminatory wage gap and determining how much she should have been paid
if she was being paid fairly.
To determine whether a coworker is an appropriate comparator, consider these
factors:
■■
Seniority/years of experience:
–– Compare the number of years the female employee has worked for the
employer with the male comparator(s).
–– Compare the number of years of relevant work experience (experience that is
related to job performance and/or benefits the employer in some way) for the
female employee and male comparator(s).
–– Review the employer’s policies to see if it has a standard pay scale that sets
pay or if it determines raises based on an employee’s number of years with the
company or relevant experience he or she has.
■■
■■
Performance reviews:
–– Did the employer conduct performance reviews for the female employee and
male comparator(s)?
–– How often and were they regularly conducted?
–– Were they given positive reviews? Compare scores.
Employee’s skill, effort, responsibility, working conditions, or establishment:
–– Evaluate the female employee and male comparator(s) in all of these areas,
and note any recent changes in these areas (for example, if an employee
recently took on supervision of additional employees or started working more
hours, this should be factored into the analysis) and whether the employee
was given a raise or additional pay (or should have been paid more) as a result
of the change.
■■
Additional factors, such as education, experience, training, ability, degrees or
certifications that are relevant to the job or benefit the business:
–– Has either the female employee or male comparator(s) attained any advanced
degrees, certifications, training etc. that are related to job performance?
–– Review the employer’s policies to see if it has a standard scale for how these
achievements impact pay (for example, employees who attain a master’s
degree get $X amount more per year).
Assessing the Employer’s Pay Policies:
■■
■■
Are pay policies well-established, clear and have they been communicated to all
employees (and in the appropriate language(s), as needed)?
For example, Maria approaches her supervisor and says that she thinks she
is being paid less than a similarly situated male coworker. Her supervisor says
that the reason the male coworker is paid more is because the employer uses
a seniority system to determine employee pay. If Maria has never heard about
this seniority system until now, and this policy has not been communicated to
other employees, it cannot be offered by the employer as a justification for the
difference. (Under Title VII and the EPA, this would not be a valid defense.)
Does the employer have a pay secrecy policy?
■■
■■
Many employers discourage or prohibit their employees from discussing their
wages with coworkers. This may be illegal under the National Labor Relations
Act (NLRA) and many state laws.
Employees can file a claim with the National Labor Relations Board against
employers who have pay secrecy policies, regardless of whether they have
been disciplined for discussing pay information pursuant to such policies. (The
very act of having a pay secrecy policy in place is sufficient to constitute a
NLRA violation.)
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix E
Appendix E
Sample Internal Complaints
Sample Complaint 1
Include the employee’s start date, especially if she has been with the
employer for more time than her male comparator.
Because a difference in job duties can provide a legal basis to pay
one person differently than another, it is important to describe what
the employee’s duties are within the company.
Include the full names of comparators and specify their gender,
although you might think it will be assumed by the investigator
reading your complaint.
Explain how the employee learned about the pay differential, so
that the company is aware that the employee has proof, and is not
merely speculating about a difference in how male employees are
compensated versus female employees.
I have worked at Adele’s Food Mart as a human resources clerk since January, 2009. My
duties include maintaining individual employee files, ensuring system-wide compliance,
and processing payroll. Our department includes two other HR clerks, Paul Stevens and
Michael Chang, both of whom are male and began working after me. Because one of
my duties is to compile personnel packets for new employees, I am privy to employees’
personal information, including individual salaries and benefits packages. Mr. Stevens
started working for Adele’s in November, 2013. I prepared his personnel file, and that is how
I learned about the difference between his salary and mine. Upon learning this, I looked up
the other clerk’s file and this is how I discovered that I was being paid less than both male
Where applicable, state how the employee’s qualifications exceed
those of her male comparators.
clerks in my department. Of the three of us, I have been at the company the longest and I
have more education than Mr. Chang. Mr. Stevens’ starting salary ($41,000/year) is higher
than my current salary ($33,900/year) which includes 3% raises every year since 2009. Mr.
Explicitly state that the employee and her comparators work for the
same employer, under the same or very similar conditions.
Chang is earning $38,600/year, and started at $35,000/year when he joined Adele’s in April
2011. Each of us works in the same office, has the same job title, and we have the same
Describe how the employee’s duties compare with those of her male
counterparts to show that she should be paid equally.
Make a clear request to remedy the pay discrimination. If the
employer agrees to the employee’s demands, she may not need to
file a complaint with the EEOC or FEPA.
duties. We split the responsibilities for personnel and payroll maintenance by employees’
last names, and each conduct quarterly compliance audits. I want my pay increased to
reflect my level of experience, tenure with the company, and educational background. I also
want to be compensated for the amount of time that I have worked for Adele’s for less than I
should have been paid.
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Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix E
Sample Internal Complaints
Sample Complaint 2
I have worked as miner at the Yosemite Mine since October 2012. Although I had been
Although this is an internal complaint, do not assume the reader
knows the site lingo. Explain what each term you use means.
mining for 7 years before joining Yosemite, I was hired as a Level 1 miner, the lowest rank
and pay scale at the mine. When I complained, I was told that starting at Level 1 was just
“how it was done” at Yosemite, and that I could leave if I wanted to. Since Yosemite is the
only mine in town, I did not feel like I had much of a choice. I accepted the job and went
If you are able, refer to a company’s internal policies to show a
violation of those as well as federal law.
about my work. I expected to have the opportunity to advance to the Level 2 pay scale
after 9 months, as is stipulated in the employment manual. Instead, I have been waiting
15 months to advance to Level 2. Since I started at Yosemite, I have seen new male hires
Compare your credentials to those of male comparators to show the
unequal treatment in clear terms.
If you have made verbal complaints in the past, reference them in your
written complaint.
allowed to begin as Level 2’s and Level 3’s, and several of these individuals have advanced
without having as much (or any) previous mining experience as I had when I started. I have
complained to my superiors about having to wait longer to advance than others have been
made to wait, and several male supervisors have dismissed my comments. One supervisor,
Where applicable, include examples of discriminatory comments
based on gender. This can help prove an employer has negative
feelings toward women and is paying women less based on these
feelings.
James Blake, told me that the more I “bitch and moan about it, the longer it’s going to take.”
Another supervisor, Eric Ross, told me that I ought to keep my “hormones in check” and
that “this is why [they] don’t like to hire women.” I believe I am being discriminated against
for being a woman, and this discrimination is affecting my compensation level. I would like
my case investigated and my level classification and pay rectified immediately.
33
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix F
Appendix F
To Whom It May Concern Letter
Name
Mailing Address
City, State Zip code
To Whom It May Concern:
State the name of organization, mission of organization, and
constituency it serves.
Equal Rights Advocates is a national non-profit law firm, founded in 1974 to advocate on behalf of
women and girls seeking equality in the areas of education and employment. We have successfully
done so through impact litigation, public education and free advice and counseling of women
nationwide. We are writing because we recently heard about the occurence of potential pay
discriminiation at your company.
LAWS AGAINST SEX DISCRIMINATION
Insert this sentence only if your state has a law prohibiting sex
discrimination at work.
If a state law exists, mention the employee threshold required
for its application, here.
If one exists.
If one exists.
Paying men and women differently on the basis of their sex constitutes sex discrimination, which is
outlawed by various laws. Title VII of the Civil Rights Act of 1964 is a federal law that forbids employers
from discriminating against an employee with respect to her “compensation, terms, conditions, or
privileges of employment” because of her sex, among other characteristics. Pay discrimination also
violates the [name of state law, if one exists, that also prohibits sex discrimination]. Title VII applies to
employers with 15 or more employees and the [state law] applies to employers with [# of employees]
Unequal pay based on gender may also violate the federal Equal Pay Act of 1963 (EPA). The EPA
applies to all employers that are “engaged in commerce or production of goods in commerce.”
In addition to prohibiting discrimination, Title VII [and the name of state law] prohibit(s) retaliation.
Thus, an employer cannot retaliate against, or punish, an employee for opposing any practice that
violates Title VII [or the name of the state law], such as complaining about unequal compensation in
the workplace.
Failing to comply with federal [and state] laws that prohibit discrimination could result in significant
financial liability.
We hope this information is helpful to you.
Sincerely,
Name of organization.
Equal Rights Advocates
34
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix G
Appendix G
Sample EEOC/FEPA Charge
35
Formal complaints, called charges, filed with the EEOC and state FEPAs, should contain enough
information to explain the problem for which an employee seeks redress, but should not contain many
specific details about the discrimination she experienced. Keeping a charge brief is fine. An employee
will have the opportunity to get into more detail about the discrimination during subsequent aspects
of the investigative process.
Sample Charge 1:
Whenever possible, include exact dates.
Charges should be written in the first person.
By stating that the male employees this complainant is comparing
herself to work within her department, she is demonstrating that they
work under similar working conditions to establish the “substantially
equal work” requirement for Equal Pay claims. Because they’re at the
same store, she also shows that they work in the “same establishment.”
On February 7, 2013, I learned from a male coworker that I was earning $1.50 per hour less than the
men in my department. I have worked at Johnson’s Furniture Store since on or around October 1,
2011, and currently earn $8.10 per hour. Throughout my time at Johnson’s, I have received positive
performance evaluations and have never had any performance or disciplinary problems. I believe I
Including details that can pre-empt an employer’s justification
for a difference in pay can strengthen a claim of compensation
discrimination.
Be sure to include that the complaining employee is a member
of a protected class, what that class is, and that she believes her
membership in that class is the basis of discrimination.
have been discriminated against because of my gender, female.
Where a complaint is more complicated, or where a complaining employee has specific information
about how the pay disparity came about, she should include such details in her charge.
Sample Charge 2:
My name is Jennifer Caldwell and I am the Chief Accountant for the City of X, in State. I was hired
Include the employee’s official title and date of hire.
as a Certified Public Accountant on February 16, 2004. I believe I have been discriminated against
because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended, and
Use language from the statute to be clear to the investigator that you
are alleging a violation of the Equal Pay Act.
paid less than a man working in the same establishment who performs a job that requires substantially
equal skill, effort and responsibility under similar working conditions, in violation of the Equal Pay Act
of 1963, as amended.
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
Appendix G
36
Sample EEOC/FEPA Charge
I am performing my job duties satisfactorily. I believe that I have been and continue to be paid less
than the man who performs substantially equal work under similar working conditions in the same
Provide details that demonstrate that the complaining employee works
under similar conditions to the employee to whom she is comparing
herself.
establishment as I work. Specifically, I am aware that Barry Jones, a man who works in my department
as an accountant and has fewer responsibilities than me, has been and continues to be paid more
than me.
In addition to an Equal Pay Act claims this employee is also asserting
a Title VII claim. For the latter, she gives examples of the terms and
conditions of her employment that she believes have been affected due
to her sex.
I further believe that I have been subjected to discrimination based on sex in the course of my
employment. Specifically, I have been and continue to be evaluated, paid, and treated differently
because of my sex (female), which has resulted in lower pay and benefits and denials of raises for
which I was and am qualified and eligible.
Describe the employee’s duties and how they compare to those
of the male employee to whom she is comparing herself. This will
help demonstrate that they are performing “substantially equal work”
meeting the requirement for an Equal Pay Act claim.
Mr. Jones and I are the only accountants in LDAA’S Administrative Department and work in the same
office. We each handle the same amount of files, and I have additional job responsibilities that Mr.
Jones does not have. I coordinate the city’s payroll, prepare tax claims, and manage departmental
audits. Mr. Jones has no direct responsibility for tax preparations, and has never managed an audit.
Where exact dates are unknown or cannot be verified, include a
qualifying phrase like “on or about” or “approximately.”
In or about August 2012, I learned that Mr. Jones was and had been paid a substantially higher salary
than me for the past three years. At my request, the Office of Human Resources gave me the salaries
of all employees as I was preparing to update the budget and set the pay for a new hire. I learned that
Mr. Jones’s salary as Accountant in 2013 was $113,195, while my salary as Chief Accountant was
$106,670. I subsequently learned that Mr. Jones, who had less experience and fewer responsibilities
than me, had been paid more than me and given higher raises than I had received since July 2010,
when City X reclassified the accounting positions in our department.
Remember that “pay” includes all forms of compensation. If a
comparator earns a greater benefits package than a complaining
employee, those benefits should be included in the wage disparity
calculation.
The city’s budget office also confirmed on or around November 2013 that I have been paid substantially
less in benefits than Mr. Jones since 2010. Because of the underpayment of salary and benefits, my
social security and pension benefits have been substantially underfunded.
Appendix G
Fighting Pay Discrimination and Unequal Pay at Work Toolkit
37
Sample EEOC/FEPA Charge
In November 2013, I raised this issue with my supervisors. They informed me that the difference in
The employer will have an opportunity to respond. If possible, provide
the EEOC/FEPA investigator with information that might preempt an
employer’s defenses.
pay was based on performance issues that were raised with me in December 2011. Those issues
were resolved immediately after they were brought to my attention. My supervisors did not state that
Mr. Jones’s salary or raises were tied to his job performance. They offered no explanation for why Mr.
Jones received a $6,587 raise in 2010, and I received none. Since that discussion, my supervisors
have refused to remedy the continuing pay disparity between myself and the male accountant.
Wherever possible, include information about how pay is determined.
A policy or practice in the workplace that disproportionately affects
women can provide evidence for a Title VII claim.
Although the City has established salary ranges for each pay grade within designated occupational
groups, it has a policy or practice of permitting managers and supervisors to set and raise employees’
pay rates within those ranges and make decisions about whether and when to move employees
between steps and quartiles without basing or tying those decisions to objective, measurable criteria
or guidelines. This policy or practice has allowed and facilitated payment of unequal wages to women
and men performing jobs requiring substantially equal skill, effort and responsibility under similar
working conditions as those of men, including me and Mr. Jones. Additionally, the city’s policy and/or
practice of not reporting, providing, or making available pay rate information to employees in a regular
and timely manner makes it difficult to detect or address gender-based pay disparities, as it did in my
case.