Equal Pay and the Gender Gap
The Wage Gap: Overview of Equal Pay for Equal Work LawsThe gender pay gap has been well documented. On average, women make less than men, across all industries and professions. People have debated whether this is a matter of discrimination or is explained by differences in the kinds of jobs men and women historically occupy. However, if there is a pay gap inside of one employer- meaning if within the same organization men and women are paid differently for equal or comparable work- that could violate federal and state equal pay laws.
If you are a woman and earn less than men with comparable duties, you may have a claim of sex discrimination and also under the equal pay laws. If you are an employer, you should be aware of these laws as well. You can also review our frequently asked questions about equal pay laws. Closing the Gender Gap-Equal Pay Act RequirementsThe Federal Equal Pay Act and the Massachusetts Equal Pay Act seek to address the gender wage gap in the workplace. Both laws prohibit compensation discrimination, or different pay for men and women who do equal or comparable work.
In Massachusetts, the test is comparable work rather than equal work. This is a slightly broader definition than under federal law. Equal or comparable work generally involves jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. There are certain exceptions, or reasons it is permissible for an employer to pay men and women differently. These include a seniority system, a merit system, or a system that measures earnings by quantity or quality of production. There is also a "catch-all" exception under federal law that allows difference in pay for "any factor other than sex." The Massachusetts Equal Pay Act does not include this catch-all exception. It does allow differences in pay based on job-related travel or job-related educational requirements. Another difference under Massachusetts law is that it requires that a seniority system cannot penalize for time spent out of work on pregnancy related or family or medical leave. An employer can have an affirmative defense to a Massachusetts Equal Pay Act if they perform a good faith equal pay audit. Equal Pay Laws and Other Discrimination Laws |
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In many situations, the protections under the Equal Pay laws overlap with existing discrimination laws. For example, an employer who pays women consistently less than men could be in violation of the laws against sex discrimination and the equal pay laws.
It is also important to remember this overlap for women of color. The wage gap is even larger for people of color than it is for white women. The equal pay laws do not address pay gaps based on race, color, national origin or other classes specifically. However, it is illegal to discriminate based on any of these factors. If a woman of color is earning less than white men or women for equal or comparable work, she may also have a claim under those laws.
It is also important to remember this overlap for women of color. The wage gap is even larger for people of color than it is for white women. The equal pay laws do not address pay gaps based on race, color, national origin or other classes specifically. However, it is illegal to discriminate based on any of these factors. If a woman of color is earning less than white men or women for equal or comparable work, she may also have a claim under those laws.
Proving Equal or Comparable Work
Equal or comparable work is work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. The work does not need to be identical to be equal or comparable for purposes of determining pay equity.
Neither the federal nor state equal pay law create a bright line test for the allowable differences in pay where the work is equal or comparable. An employer facing an equal pay claim may rely on a "merit system" as a reason for unequal pay. That merit system. however, may be based on subjective criteria that in itself affects what women earn as compared to men.
In the same way, a pay difference that is based on quality or quantity of production could mask discrimination. This could occur if women in sales are given territories or accounts that are more difficult or less profitable. This is just one example- there are many ways in many businesses that the employer may control access to opportunities. This in turn can lead to different performance even on objective metrics.
Finally, under the federal law, there is the catch-all exception for differences based on "any factor other than sex." This means that a plaintiff can expect a battle of competing facts in an equal pay claim, while the employer tries to prove potentially a multitude of justifications for unequal pay. Read more about what to expect as a plaintiff in a civil lawsuit.
Neither the federal nor state equal pay law create a bright line test for the allowable differences in pay where the work is equal or comparable. An employer facing an equal pay claim may rely on a "merit system" as a reason for unequal pay. That merit system. however, may be based on subjective criteria that in itself affects what women earn as compared to men.
In the same way, a pay difference that is based on quality or quantity of production could mask discrimination. This could occur if women in sales are given territories or accounts that are more difficult or less profitable. This is just one example- there are many ways in many businesses that the employer may control access to opportunities. This in turn can lead to different performance even on objective metrics.
Finally, under the federal law, there is the catch-all exception for differences based on "any factor other than sex." This means that a plaintiff can expect a battle of competing facts in an equal pay claim, while the employer tries to prove potentially a multitude of justifications for unequal pay. Read more about what to expect as a plaintiff in a civil lawsuit.
Proving the Pay Gap
Sometimes the jobs that men and women do have compensation plans that are easy to compare. If everyone is paid a salary, it is not difficult to discover what each person is being paid. This gets more complicated if compensation includes bonuses and/or incentive pay.
A good starting point is to look at the total compensation from all sources. This information, however, is not always easy to come by before filing a lawsuit unless others in the workplace are willing to share their salary information.
In Massachusetts, this concern has been addressed by recent amendments to the state law. Now, it is unlawful for employers to stop their employees from sharing compensation information with each other.
A good starting point is to look at the total compensation from all sources. This information, however, is not always easy to come by before filing a lawsuit unless others in the workplace are willing to share their salary information.
In Massachusetts, this concern has been addressed by recent amendments to the state law. Now, it is unlawful for employers to stop their employees from sharing compensation information with each other.
Time Limits for Bringing an Equal Pay Claim
Another important difference between a sex discrimination claim and an equal pay claim is the statute of limitations. In Massachusetts, a discrimination claim must be filed within 300 days of the act of discrimination.
In contrast, the statute of limitations for a federal equal pay claim is two years, and three years for a Massachusetts equal pay claim. This means even if you are out of time to file a sex discrimination complaint, you may still have time to challenge your compensation.
In the past, many women working for unequal pay were barred from bringing claims because the pay practice had been going on for more than two or three years. In 2009, the Lilly Ledbetter Fair Pay Act was passed by Congress. Under the Ledbetter Fair Pay Act, each paycheck reflecting unequal pay became a new and separate violation.
What this means is that even if you have been paid unequally for many years, you can still bring a claim if any of the affected paychecks were paid within the statute of limitations period.
In contrast, the statute of limitations for a federal equal pay claim is two years, and three years for a Massachusetts equal pay claim. This means even if you are out of time to file a sex discrimination complaint, you may still have time to challenge your compensation.
In the past, many women working for unequal pay were barred from bringing claims because the pay practice had been going on for more than two or three years. In 2009, the Lilly Ledbetter Fair Pay Act was passed by Congress. Under the Ledbetter Fair Pay Act, each paycheck reflecting unequal pay became a new and separate violation.
What this means is that even if you have been paid unequally for many years, you can still bring a claim if any of the affected paychecks were paid within the statute of limitations period.
How We Can Help
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We can help you navigate these issues and get clarity on your rights and obligations, and to help with your self-evaluation if you are an employer who would like to avoid future liability under the Massachusetts Equal Pay Act. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
