Equal pay act violations do not require any showing of intent — the mere difference in salary, with no justification, will be enough to violate the act.
The Equal Pay act requires that men and women be paid the same rate (and hired at the same salary) assuming they are doing the same type of work. There is an exception in the law for pay differences that are not related to sex—that is, you can legally pay a man more than a woman if you can find a non-gender-based reason for doing it.
A non-gender-based reason is often experience or training, but in a recent federal court case, the Fresno county education office tried to justify the difference in pay with a different argument — that the woman it was hiring historically had a lower salary in previous jobs, and thus, it was not discrimination based on gender to pay her at that salary level, even though it was less than what the men in the company were making.
Ninth Circuit Rejects Argument
You may immediately see the fallacy of this argument. Allowing a company to use past pay allows an employer to use discriminatory pay history as justification to continue discriminatory payment. The ninth circuit federal court agreed, finding that the argument made by Fresno County was simply perpetuating the exact same behavior that the Equal Pay Act sought to stop.
This may seem obvious, but the law in the ninth circuit had long been the opposite – that setting a salary based on historical earnings by a potential employee was not a gender based motive for difference in pay and thus did not violate the act.
Other than overturning that precedent, the federal court went a step further. Other federal courts had already stated that prior salary could not be the only factor to justify different salaries for men and women—meaning that as long as there were other reasons, pay history could be as one of many factors to determine salary. But the ninth circuit in this case said that it could never be a factor.
Act is Easy to Violate for Employers Who are Not Careful
Equal Pay Act claims are often brought as class actions—Uber will be paying $10 million to settle claims that it paid women and minority engineers less money than their counterparts.
Employers need to be aware of the equal pay act. Violating the act does not require any showing of intent—you do not have to be trying to discriminate or harbor any ill will towards one gender or another. The mere difference in salary, with no justification, will be enough to violate the act.
There should be other, tangible reasons why a business chooses to pay an employee of one sex in a similar job a lesser wage than someone of a different gender. Businesses can use seniority systems, merit, or other qualitative or subjective measures of performance. This is why it is always so important to document performance, reprimands, violations of company policy, and other measures of performance in employee files.
The Colorado employment and business law attorneys at Ball & Barry law are here to help you with salary and hiring legal issues, to make sure your business does not end up in trouble. We can also help employees who feel they have been discriminated against based on being paid different salaries based on race, gender, or nationality.