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“LESS MONEY, MORE HOURS, Please,” said No One Ever: A Look at Women in the Workplace and What the Equal Pay Act Means

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Women work more than men work for the same amount of pay. On average, what a man earns in one week, a woman earns on Tuesday of the following week. Equal Pay Day, a “holiday” that symbolizes how far into the year women must work to earn what men earned in the previous year, falls on a Tuesday as a “nod” to the “extra” time women work for equal pay. This year, Equal Pay Day falls on Tuesday, April 2nd.

Started by the National Committee on Pay Equity (NCPE) in 1996, Equal Pay Day began as a public awareness event to shed light on the gap between men’s and women’s wages.The Committee’s Report, The Wage Gap Over Time, illustrates how slowly this divide has closed over the years. For example, according to this report, it took 50 years to gain an average increase of 18 cents: in 1963, full-time working women made 59 cents to the man’s dollar; in 2010, this was marked up to 77 cents. In 2016 and 2017, full-time workers reported between 79.6 and 80.5 cents to the man’s dollar. The Institute for Women’s Policy Research estimates, based on its research, that women won’t receive equal pay until 2059 (40 years to go).

 

The most recent study by The Institute for Women’s Policy Research, Still a Man’s Labor Market, finds that women earn 49% of what men earn (Nov. 28, 2018). From 2001-2015, this gap was at 51%, and in studies from earlier years it was at 38% and 19%. We are rising, but at what cost?

The answer to that question, taken at its most literal, is that women lose hundreds of thousands of dollars to men over the course of their life due to gender gaps in wages. Economist Evelyn Murphy, president of The Wage Project, estimates that over a lifetime these lost wages amount to:

  • $700,000 for a high school graduate
  • $1.2 million for a college graduate
  • $2 million for a professional school graduate.

Of course, women of color and minority women lose more than that. This year’s Equal Pay Day, April 2nd, is just the average day that women have to work to in 2019 to earn what white men earned in 2018 (per the Sept 12, 2018 Census Bureau). Women of color will have to work even longer into the year to hit their Equal Pay Day:

  • Asian American women: March 5 (3 months longer)
  • White women: April 19 (4 months longer)
  • Moms: June 10 (6 months longer)
  • African American women: August 22 (8 months longer)
  • Native American women: September 23 (9 months longer)
  • Latinas: November 20 (11 months longer)

EQUAL PAY ACT

Under the Equal Pay Act, men and women who work for the same employer should earn equal wages for substantially equal work. For a confirmed wage difference to be actionable, a plaintiff must show that the jobs are similar by comparing “job tasks, skill or educational prerequisites, similar levels of mental or physical effort, responsibility, accountability, and similar working conditions.”

If an EPA violation is alleged and affirmed, the successful plaintiff is entitled to the underpayment she would have received for equal work (damages) plus a liquidated damage, typically equal in amount to the underpayment. Damages are subject to a two-year statute of limitation, raised to three years if the plaintiff can prove that the employer showed willful disregard for the law on underpayment.

Employers may fight EPA violations by showing that higher compensation was based on years of employment, merit systems, and other defensible differences, though typically they bear a significant burden in such a defense. Up for debate is whether or not an employer can use an employee’s salary history to defend the divide between a man in woman in a similar position. As of right now, this is state dependent; some states have laws banning any inquiry into an applicant’s salary history and many states ban the use of application questions demanding salary history.

In 2018, the U.S. Court of Appeals for the Ninth Circuit held that “a legitimate factor other than sex must be job related and that prior salary cannot justify paying one gender less if equal work is performed…” However, the U.S. Supreme Court vacated this decision based on a counting error by the Ninth Circuit. Nonetheless, the finding is perhaps predictive of the direction we’re headed. On March 27, the House of Representatives voted on the Paycheck Fairness Act and while it’s likely to fail in the Senate, subsequent legislation could impact the expansion and amendment of EPA litigation and claims.

Whether local laws ban the use of salary history or not, employer’s should offer compensation based on a positions guidelines and an applicant’s qualifications, not gender. One thing is sure: women are fighting harder than ever for equality in the workplace and their equal pay is no exception. To read more on a headlining case, see Equal Pay Day and the US Pay Equity Landscape, which summarizes the case of the U.S. women’s national soccer team, who, on International Women’s Day this year (March 8), sued their employer under the Equal Pay Act and under Title VII seeking back pay, interest, liquidated damages, and attorneys fees and costs.