The pay gap – or paying women and other historically marginalized groups less for the same or substantially similar work – has increasingly been in the media spotlight. Politicians have also taken note. While there have been pay discrimination laws on the books at the federal level and in most states for decades, over the past several years, state and local governments and Puerto Rico have passed numerous new laws all aimed at closing the pay gap. Since 2016, more than 200 bills addressing pay equity were introduced in nearly every state. At the time of publication, 13 states have enacted "second wave" pay equity laws; 24 states and municipalities – along with Puerto Rico – have enacted salary history inquiry bans; and 19 states have enacted wage transparency provisions. In addition, employers with 100 or more employees that are subject to Title VII and certain government contractors are now required to report compensation data to the Equal Employment Opportunity Commission (EEOC) annually.
While the federal Equal Pay Act prohibits employers from paying employees less for equal work because of gender, these second wave pay equity laws revise this standard – prohibiting unequal pay for "comparable" work as opposed to "equal" work. The newly enacted salary history inquiry bans restrict employers' ability to inquire into the salary history of applicants. Finally, wage transparency measures prohibit employers from banning pay disclosure in the workplace or from retaliating against employees who discuss their wages. Employers must comply with federal law and this growing patchwork of state and local laws.
The plaintiffs' bar also has gotten in on the action. Since 2016, over 250 pay equity cases have been filed in the United States. High profile pay equity cases are in the news frequently – the proposed class and collective action filed in California federal court by all 28 members of the U.S. Women's soccer team is just one example. Law firms and technology companies also have been targets. Indeed, to a large extent, the cases target professional services organizations and professional positions: lawyers, engineers, professors, scientists, managers and doctors. In addition to an equal pay claim, these lawsuits frequently include claims of discrimination, sexual harassment or wrongful termination. These lawsuits have been filed in state and federal courts across the nation as both single plaintiff cases and class or collective actions.
This white paper provides a discussion of the nuts and bolts of the various existing pay equity laws, including:
- the elements a plaintiff must establish to prove a claim;
- the defenses available to employers;
- the damages available; and
- the procedural mechanisms that allow for these cases to be brought as class or collective actions – increasing the exposure for employers.
We also provide practical advice to help employers avoid pay inequities. Finally, we provide recommendations on how employers can seek to remediate pay inequities identified through a self-audit or otherwise.
Click here to read the full Littler Report.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.