By Weisberg Cummings, P.C. on December 11th, 2019
The battle to ensure equal pay for work of equal value for women has been taking place for over 150 years. Even during the days of the Civil War, when women working for the federal government were paid half the salary of their male counterparts, objections were being raised (unsuccessfully) about the discrepancy.
Global conflicts in the 20th century that involved the United States were particularly good for women in terms of pay equity. During World War I, the War Department wanted to move men towards jobs that supported war industries and designated certain occupations for women. They did this to shame the men and move them towards the other jobs. The women were, however, paid as much as the men were paid until the end of the war.
This happened again during the Second World War when many women took the place of men in ammunition and aircraft industries. Trade unions championed the right of women to be paid as much as their male counterparts. They didn’t do this because they felt the women deserved it, however. They did it because they wanted to make sure that when the men returned from war, companies did not use the idea of paying women less money to pay men less money.
Although there were efforts after the end of World War II to secure equal pay for women for work of equal value, national business organizations like the U. S. Chamber of Commerce did their best to crush them. Federal equal pay laws didn’t appear until 1963 when then Pres. John F. Kennedy signed into law the Equal Pay Act (EPA) as an amendment to the Fair Labor Standards Act (FLSA). This amendment provided a legal basis to fight for equal pay for equal work for women.
Then, in 1964, the Civil Rights Act prohibited discrimination based on color, race, origin, sex or religion in many areas, including the workplace. Other laws were to follow in later years, including the Educational Amendment of 1972, which expanded the EPA to include white-collar professional, administrative and executive jobs that had originally been exempted. Other important laws were the Pregnancy Discrimination Act of 1978, which protects pregnant employees from discrimination, and the Lilly Ledbetter Fair Pay Act of 2009, which then Pres. Obama made his first legislative act. There are also state-based equal pay laws for women in Pennsylvania.
While these various laws over the years have helped women’s earning power increase, there is still a significant way to go. As of the second quarter of 2019, the Bureau of Labor Statistics (BLS) reports that women only earn 81.4% of what men earn. Even though women on average have higher levels of education than their male counterparts, they earn significantly less.
A study by the American Association of University Women (AAUW) showed:
- A woman working as a financial manager earns, on average, about $65,000 a year, while her male counterpart doing the same job earns almost $100,000 a year.
- Female surgeons earn about $172,000 a year, while male surgeons earn about $234,000.
Even these statistics, however, can be misleading. Basically, only white women earn about 80% of what white men earn.
- African-American women earn about 62.5% of what white men earn
- Hispanic women only earn 54.4%.
Fortunately, legislation like the EPA and Title VII of the Civil Rights Act of 1964 provide women with tools that they can use when facing obvious discrimination in wages. If you believe that you are being discriminated against because of your sex or gender and that male counterparts doing the exact same work as you are earning more money than you are, contact an experienced attorney as soon as possible.
Title VII of the Civil Rights Act of 1964
After the assassination of Pres. Kennedy in November 1963, Pres. Lyndon B. Johnson wanted to continue much of the work that Pres. Kennedy had started on civil rights, which Johnson believed was essential to the future of the country. In 1964, Johnson introduced the Civil Rights Act, which was aimed at wiping out discrimination in several different areas. Although primarily designed to improve the lives of African-Americans in the country, it also contained Title VII, which sought to end discrimination on the basis of “race, color, religion, sex or national origin.”
Title VII sought to end discrimination against women in employment, and it created a way for women to legally fight for equal pay for equal work.
Title VII prohibits all forms of discrimination in employment, including:
- Pay, disability leave and retirement plans
- How an employee is hired or fired
- How employees are assigned or classified and how they are compensated
- The way employees are promoted, laid off, recalled or transferred
- How an employer advertises a job
- How employees are recruited
- How employees are tested
- How a company’s facilities are used
- How employees are trained
- How apprenticeship programs are run
- Fringe benefits for employees
- Any other conditions or terms of employment
It also protects against retaliation for attempting to assert your rights under Title VII.
Title VII applies to any business that has 15 or more employees. This includes all levels of government and public and private colleges or universities, labor organizations or employment agencies. Title VII also covers more discriminatory actions than the EPA. The EPA only covers gender-based unequal pay, while Title VII covers most forms of discrimination.
Additionally, the Supreme Court ruled in 1981 that discrimination claims not covered by the EPA could be pursued under Title VII. So today, even if you have evidence of wage discrimination under the EPA, it can also be pursued under Title VII. If you have evidence of discrimination in the workplace that’s affecting your pay rate based on a factor like nationality, that charge can be pursued with Title VII.
Title VII was truly landmark legislation. Since it provides the broadest coverage, it’s probably the most important equal opportunity legislation ever enacted. Title VII aims to ensure employers hire and pay people on the basis of their abilities and not the color of their skin, their national origin, their religious beliefs or their gender. Title VII changed the way that employees were selected for employment across the country.
Yet even though Title VII has been the law for more than 50 years, workplace discrimination continues to be a serious problem. If you believe that you been discriminated against for any of the reasons outlined in the EPA or under Title VII, you should contact an experienced attorney who can help you understand your rights, understand how those rights are enforced and help you prepare to file a charge.
Federal Equal Pay Laws and Laws in Pennsylvania
Women who face wage discrimination in Pennsylvania can use the federal Title VII as a potential legal remedy, along with state laws.
Pennsylvania has its own Equal Pay Law (EPL). It became law in 1960, before the federal EPA. It prevents discrimination by employers in any business where employers try to pay different wages based on sex. This covers jobs that require equal work including skill, effort and responsibility and that are carried out under similar work situations.
Wage differences are only allowed if they are based on merit or a seniority system or a system that measures quantity or quality of production or any factor other than sex.
EPA equal pay protection covers all businesses and their employees, regardless of how big they are, but it does not cover employees protected by the federal FLSA. So anyone who is protected by the federal EPA will not be protected by the state EPA because they cover the same legal territory.
All other forms of wage discrimination or discrimination itself fall under the federal Title VII law.
Under Pennsylvania’s EPL:
- An employer can’t reduce the wages of other employees to comply with the law.
- An employer cannot use as a defense a situation where a new hire or current employee signs an agreement (contract) to accept a lower rate of pay than what is paid to other employees of the opposite sex for the same job.
- All employers must maintain records for at least a year that include important information on employees, including their names, addresses and how much they earn. Records must be maintained longer if they are important to a pending or current legal action concerning the employer.
- A summary of the Pennsylvania EPL requirements must be posted conspicuously in the workplace.
- All provisions of the EPL are enforced by the Department of Labor and Industry, which has the authority to enter any workplace and inspect or copy any important records.
Pennsylvania uses a two-step burden-shifting test to establish wage discrimination.
- The first step is for the employee to prove a prima facie case by showing that fellow employees of the opposite sex received different wages for performing the same job.
- Once this is established by the employee, the burden then shifts to the employer to show that the wage difference is not based on sex but on one of the defenses allowed under the EPL.
If an employer violates the Pennsylvania EPL, they are liable to pay damages equal to the unpaid wages of the affected employee, as well as a similar amount in the form of liquidated damages. The employer may also need to pay the employee’s reasonable attorney fees and costs.
If an employee wishes to file an action under the state EPL, it must be done within two years of when the violation occurred (for instance, the last paycheck which shows the discrepancy).
How to File a Charge for Unequal Pay Due to Gender
If you wish to file a charge under federal Title VII, it will be enforced by the Equal Employment Opportunity Commission (EEOC). This is the federal agency that enforces most anti-discrimination legislation. A discrimination charge is a signed document that asserts that an employer or an organization has discriminated in employment and requests the EEOC to undertake remedial action. You cannot file a lawsuit for discrimination until you have filed a charge with the EEOC.
If you wish to file a charge under the federal EPA or Pennsylvania EPL, you do not need to go through the EEOC but may file a lawsuit directly. Remember, the EPA and EPL only deal with gender-wage discrimination and not with other forms of discrimination that may affect an individual’s wage.
If you are prepared to file a charge immediately, you can call the EEOC and speak with one of their counselors about your rights. While hiring a lawyer is not required, discussing your options with a lawyer before filing a formal charge is beneficial.
Time Limits
Under Title VII, you need to file your charge within 180 days from the time the discrimination occurred to protect your legal rights. It’s possible to extend this deadline to 300 days if you are filing a charge of discrimination based on sex because Pennsylvania’s state agency (in this case the Pennsylvania Human Relations Commission or PHRC) also enforces a law that forbids discrimination based on sex.
You should check with your attorney or with the EEOC to see if your charge will qualify for the 300-day time limit.
Ways to File
There are several ways to file a discrimination charge with the EEOC:
1. Online
You can use the EEOC’s Public Portal to schedule an appointment, submit an inquiry or file a charge. You will probably need to answer a few online questions that will help the EEOC determine if it is the right federal agency to deal with your complaint.
2. In-Person
You can schedule an appointment through the Public Portal at your local EEOC office. The EEOC believes that discussing your employment discrimination concerns with a staff member is the best way to determine if you should file a discrimination charge. Using the information you provide, the staff member who interviews you can prepare a charge that you can review and sign online through your account.
You can file a discrimination charge at any one of the over 50 EEOC field offices. The charge may be investigated, however, at the field office closest to where you allege the discrimination took place.
When you go to a meeting at an EEOC field office bring any important papers or information that help illuminate your case. For example, if you knew you were fired because you had complained about gender-based wage discrimination, but your employer claimed it was based on your performance, bring all previous performance evaluations with you as well as the names of people who are aware of the situation and can be contacted.
You may also bring a lawyer to this meeting who, working with the staff member, can help prepare a charge.
3. Telephone
The EEOC does not take charges over the phone, although you can start the process this way. You can speak to someone at an EEOC field office about your situation. That staff member will ask you for information to determine if the discrimination fits under Title VII and then tell you how to file a charge.
4. By Mail
You can file a charge by sending the EEOC a letter that includes the following:
- Your name, your email address, your regular address and your phone number
- The alleged discriminating employer’s name, address, email and phone number
- How many employees work at that business
- A short outline and description of what you believe were the discriminatory acts
- When these acts took place
- Your signature
5. At a Local or State FEPA
The EEOC and Pennsylvania, through its FEPAs, have a work-sharing agreement that prevents duplication of charges. If you file a charge based on gender-wage discrimination with either the EEOC or the state agency, the other agency will automatically receive the charge. This is known as a dual filing, and it serves to protect your rights under state and federal law.
If you file a charge at a state agency, tell them you also want it filed with the EEOC.
6. Time-Limited Cases
If you have fewer than 60 days in which to file a charge, the Public Portal of the EEOC provides special directions on how to provide needed information to the EEOC and file a charge quickly. If you find yourself in this time-limited situation, it makes sense to work with an experienced attorney.
A notice about the charge will be sent to your employer within 10 days of your filing. In many cases, the EEOC will request you and your employer take part in a mediation program. If mediation doesn’t resolve the charge, the employer will be asked to provide a written response. Once the employer’s response is available, you can view it through your account at the Public Portal.
The EEOC may then decide to investigate the charge more thoroughly. In some cases, they will interview the employer as well as gather other documents or information. Investigations take, on average, 10 months. Once the investigation is done, both you and your employer will be notified of the results.
If the employer refuses to cooperate with the investigation, the EEOC will use an administrative subpoena.
Once you have filed your charge under Title VII, you must have a Notice of Right to Sue before you can launch a lawsuit in federal court. In most cases, you must provide the EEOC with 180 days to try and resolve your situation before they will issue you with a Right to Sue. In some cases, however, the EEOC may issue this Right to Sue earlier.
Wage Gap Present for Women in Pennsylvania
As far as wage discrimination in Pennsylvania against women is concerned, the state does not have a sterling reputation. Currently, Pennsylvania is ranked 21st out of 50 states in terms of the wage gap between men and women. In 2018, according to the AAUV, women in Pennsylvania earned $45,097 compared to $55,291 for men, a difference of 18%. The gap is worse for working mothers and women of color.
The gender-based pay gap costs women in Pennsylvania more than $35 billion a year in lost wages.
The current administration of Gov. Tom Wolf has attempted to make some adjustments to level the playing field in Pennsylvania. In an executive order of March 18, 2018, the governor directed state agencies to:
- No longer request salary history from job applicants
- Base salaries on job responsibilities, the applicant’s knowledge and skills and the normal pay range for that position
- All job postings must clearly explain the pay range.
The ban on asking for salary history is interesting because its goal is to upend the idea that a lower wage at one job leads to a lower wage at a new job and so forth.
If You Believe You Are a Victim of Gender-Based Wage Discrimination, Contact Weisberg Cummings, P.C.
At Weisberg Cummings, P.C., all our employment law attorneys work hard to protect your interests and your rights. Their knowledge in a variety of legal situations will help ensure that if you been victimized at work or experienced workplace discrimination, you will receive a thorough defense provided by experienced counsel.
If you believe that you have suffered gender-based wage discrimination, we will provide you with a realistic outlook of your chances of success. Gender-based wage discrimination in Pennsylvania is a serious problem, and we can help protect your rights to a fair wage for the work that you do.
You can contact us for a free initial consultation with one of our attorneys. Call us at 855-716-2367 or contact us online. An evening or weekend appointment can be arranged by request. A member of our team will get back to you as soon as possible.