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Virginia’s Deplorable Equal Pay Gap - What Can Be Done?

Virginia’s Deplorable Equal Pay Gap - What Can Be Done?

In 2018, Virginia ranked fourth on Forbes “Best States for Business” list based on their regulatory climate, diverse economy, and business-friendly government policies. However, apparently this rating didn’t take into account Virginia’s egregious pay gap. According to the American Association of University Women, Virginia ranked 29th when comparing median earnings for women and men. As of 2017, Virginia’s women earned 79% of what Virginia’s men earned when comparing median earnings. Although the Equal Pay Act is designed to remedy the pay gap between genders, many women have had difficulty winning their cases because of the complications encountered in meeting all the requirements for a claim. Yet, there are simple and easy policies employers can implement that would help reduce the pay gap and achieve gender equality.

What is the Equal Pay Act?

In 1963, the Equal Pay Act (“EPA”) was signed into law by President John F. Kennedy as an amendment to the Fair Labor Standards Act. Its goal was to provide equal pay for equal work, as women had started entering the workforce at higher rates after World War II. Think of Rosie the Riveter in her red bandanna showing off her biceps. The EPA prohibits employers from compensating men and women differently for the exact same work. The EPA is administered and enforced by the Equal Employment Opportunity Commission (“EEOC”). However, unlike Title VII of the Civil Rights of Act of 1964, you do not have to file an EPA claim with the EEOC. You can either file your EPA claim with the EEOC or go directly to court. Under the EPA, you are generally required to file your lawsuit within two years of when you received the discriminatory pay, but this can be extended to three years for a willful violation of the EPA.

Do I Have a Case? What Do I Have to Prove?

On a basic level, the EPA prohibits sex-based wage discrimination by employers. However, proving an EPA claim is much more complex. A plaintiff must prove three things; (1) that the employer paid higher wages to someone of the opposite sex who (2) performed equal work requiring equal skill, effort, and responsibility, and (3) under similar working conditions. Typically, plaintiffs have no trouble proving the first prong of the EPA. However, they often get tripped up on the second and third prongs because some courts interpret “equal skill, effort, and responsibility” and “similar working conditions” very strictly.

For example, the Fourth Circuit, which historically has not been employee friendly, has interpreted “equal skill, effort, and responsibility” to mean virtually identical jobs, which is a very narrow interpretation. In Soble v. University of Maryland, 778 F.2d 164 (4th Cir. 1985), a case involving differences in pay among assistant professors at University of Maryland, the Fourth Circuit found that possessing the same job title was not enough to satisfy the EPA requirement of “equal skill”. Similarly, in Spencer v. Virginia State University, 919 F.3d 199 (4th Cir. March 18, 2019), a case involving unequal pay among university professors, the Fourth Circuit found that university professors couldn’t be compared if they did not teach in the same department; (Locke & Quinn no longer counsel of record in this case when the opinion was issued).

Working conditions can also be narrowly interpreted by courts, although they don’t have the burden of being “equal” only “similar.” An individual trying to bring an EPA claim should think of any differences in his or her working conditions from the higher paid colleagues of the other sex. Examples of difference include: how many people you supervise, the amount of travel involved in your job, and flexibility in your job schedule. Courts also have commonly interpreted similar working conditions as working in the same location. Therefore, if you work as a manager of a chain store in Norfolk, you generally cannot compare yourself to managers of the same chain store in Richmond even if you had the same title and responsibilities.

What is the Employer’s Burden of Proof in Response?

Once an employee has proved all three prongs, the employer has the burden of proving by a preponderance of the evidence that the pay differential is justified by a factor other than sex. The EPA outlines four exceptions for paying male and female employees differently; (1) a seniority system, (2) a merit system, (3) a system which measures earning by quantity or quality of production, or (4) a differential based on a factor other than sex. This last factor can encompass a range of things including years of experience, differences in educational degrees, and past work experience.

Ways Employers Can Prevent the Pay Gap

Employers Can Create Transparency. While the wage gap is pervasive in Virginia, employers can easily create parity for their employees. The wage gap is perpetuated by a lack of transparency in the workplace. Female employees don’t realize they are being compensated differently than their male colleagues because it’s uncommon to openly discuss salary and benefits in the workplace. Lilly Ledbetter, the plaintiff in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), is a perfect example of this phenomenon. After 19 years at Goodyear Tire and Rubber Company, Ledbetter was slipped an anonymous note revealing she had been paid thousands less than her male coworkers for years. She was completely blindsided by this information as she had not realized there was any difference in pay between herself and her male colleagues.

Creating a workplace culture where pay information is made public and employees are encouraged to openly discuss their salaries and benefits can prevent secrecy around compensation and potential pay discrimination. If this had been the case at Ledbetter’s workplace, she would have known a lot sooner about the difference in pay and been able to rectify the situation. Some workplaces prohibit or strongly discourage any discussion of wages, especially in the private sector. In 2018, Delegate Jennifer Boysko, now Senator Boysko, tried to eliminate this problem by introducing HB 1089 which prohibited limiting an employee’s right to discuss wages in the workplace. It’s important to allow employees to discuss their salaries and benefits in order to ensure equal treatment in the workplace.

Employers Can Stop Paying Salaries Based on Former Salaries. Another step employers can take to eliminate the pay gap is to end the practice of relying on a job applicant’s current salary to set their new salary. Depending on an applicant’s current salary in setting compensation often serves to further perpetuate the wage gap. For example, a female applicant’s salary at a previous job might be lower than another equally qualified male candidate because of pay discrimination at the former workplace. Additionally, depending on an employee’s current salary can cause the gap to slowly increase overtime, creating an even large pay disparity. Several states and cities have banned employers from asking past salary history because of the research linking this practice to the pay gap.

This phenomenon was brought to life in a recent Supreme Court case Yovino v. Rizo, 139 S.Ct. 706 (Feb. 25, 2019). A female math consultant sued her employer under the EPA because she was being compensated less than her male colleagues. Her employer did not deny she was being paid less than the men in her department, but explained she was paid less because her current salary was based off her prior earnings. Before going to the Supreme Court, the Ninth Circuit ruled in Yovino that prior salary could not be used to justify any differences in compensation between two employees because this practice exacerbates the gender wage gap. This was a great ruling for employees, as it clarified that using a prior salary was not allowed in determining their wages. However, the Supreme Court did not rule on the case and sent it back to the Ninth Circuit because the judge who authored the opinion passed away. The Ninth Circuit has yet to issue a new opinion.

Although it can be difficult for Plaintiff’s to prove an EPA claim because of the rigid requirements of the law, it is easy for employers to prevent pay disparity by creating more transparency about salary and benefits in the workplace. The Ninth Circuit’s decision in Yovino regarding the use of past salary history to determine current salary will be critical to employers, employees, and the future of equal pay cases.

The Locke & Quinn law firm provides client-oriented legal services and solutions in employment, personal injury, family law, family formation and LGBT matters. When you hire an attorney from our firm, you will meet and work directly with your attorney. We listen to our clients’ concerns and objectives to form ideas and strategies to achieve positive outcomes. 804-285-6253 www.lockequinn.com

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