Unequal pay for equal work?

Dear Mary, One of my workers recently raised concerns that she is being paid less than her male counterpart. They have similar positions and the same amount of experience, but different job titles. Should I be concerned?

Under the Equal Pay Act, employers are prohibited from paying employees of one sex at a lower rate than employees of the other sex for equal work. To be covered as “equal,” the jobs must require equal skill, effort, and responsibility, and must be performed under the same working conditions.

In order to prove a pay discrepancy, the employee must show that employees of the opposite sex are paid different wages for equal work. Determining what’s “equal” involves two questions: 1) Do the jobs have a common core, meaning a significant portion of the work is identical?; and 2) Are there additional tasks required of one job that are not required of the other, making the jobs substantially different?

If the two jobs are equal, the discrepancy in pay may be acceptable if the employer can show that the difference in wages is due to one of four statutory exceptions: 1) a seniority system; 2) a merit system; 3) a system that measures earnings by quantity or quality of production; or 4) any other factor besides gender.

Exceptions won’t help an employer if they are pretextual, meaning hiding actual discrimination. A defensible example of a seniority exception to the law against unequal pay for equal work is if one employee has 20 years of experience, and another employee has no experience, it seems fair to compensate the employees differently, regardless of sex.

Likewise, if you have two commission-based employees whose base pay is equal, and they are otherwise given equal treatment, then it’s not considered discrimination if one of the employees sells more, and thus, makes more in commissions.

In your case, a mere difference in job titles would seem to be insufficient to justify a difference in pay. There needs to be a legitimate difference in the tasks and qualifications for each job in order to have separate job titles with different pay.

Keep in mind that an employer’s intent is irrelevant. It doesn’t matter if you meant to discriminate or not. The gender pay gap remains a big issue in the U.S. — in 2009, women’s annual income was reportedly only 75.7 percent of men’s. Women reportedly still earn less than men in nearly every occupational category.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.