The Equal Pay Act: overview and update.

The gender gap is still an issue, though more and more workers are beginning to understand that wage differentials based on sex ate illegal under the Equal Pay Act of 1963. If the facts show a disparity in pay between male and female employees, then a claim may be possible for relief under the Equal Pay Act which is part of the Fair Labor Standards Act. In the following helpful primer, the author present an overview of actions brought under the Equal Pay Act, along with cases explaining how courts interpret the Act. This information is essential to employees and their advocates who may be confronted with subtle, but nonetheless illegal, paycheck discrimination.

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Historically, women have been undervalued in the workplace. The Equal Pay Act is one statute designed to redress this undervaluing when it is manifested through discriminatory wages. Many practitioners overlook this statute, although it contains appealing components-strict liability, affirmative defenses, liquidated damages, and bypassing the EEOC administrative process to name a few. The following abstract of the Equal Pay Act will demonstrate how this statute can become a useful tool to redress sex-based wages in the workplace.

The Statute

The Equal Pay Act of 1963, enacted as part of a wage and hour law, provides as follows:

Prima Facie Case

To establish a prima facie case under the Equal Pay Act, the plaintiff must show that her employer pays her a lower wage rate than that of a male counterpart for equal work on jobs requiring equal skill, effort, and responsibility under similar working conditions in the same establishment. (1)

Once a prima facie case has been established, the burden shifts to the defendant to prove, by a preponderance of the evidence, that the wage differential is justified by (1) a seniority system, (2) a merit system, (3) a system pegging earnings to quality or quantity of production, or (4) any other factor other than sex. (2)

If the defendant fails to justify the wage differential under any of the four affirmative defenses set forth above, liability automatically is established. Unlike Title VII, which requires a showing of discriminatory intent to establish a sex-based wage differential, the Equal Pay Act plaintiff need not show intentional discrimination to establish liability. (3)

Equal Skill, Effort, and Responsibility

Skill refers to the level of experience, training, education, and ability needed to perform the jobs at issue. (4) Effort refers to the measurement of the physical or mental exertion needed for the performance of a job. (5) Responsibility refers to the degree of accountability required in the performance of the job with emphasis on the importance of the job obligation. (6) Generally, all three factors must be satisfied individually as opposed to collectively. (7)

When analyzing the equality of jobs, it is the requirements of the jobs, and not the qualifications and skills of persons holding the jobs, which must be analyzed. (8) Moreover, it is the job content, and not the job descriptions, titles, or classifications, which must be used to determine the equality of jobs. (9)

Similar Working Conditions

"`Similar working conditions' encompasses two subfactors: `surroundings' and `hazards.' `Surroundings' measure the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity and their frequency. `Hazards' take into account the physical hazards regularly encountered, their frequency and the severity of injury they can cause." (10)

Additional Tasks

When analyzing an employer's argument that the higher paid employees perform extra duties requiting additional skill, effort, and responsibility, there are often flaws in the employer's argument which defeat the argument's validity. (11)

Predecessor and Successor Employees Are Appropriate Comparators

Every circuit that has considered this issue recognizes that predecessor and successor employees are appropriate comparators under the Equal Pay Act. (12)

Equal Work Does Not Mean Identical Work

Equal does not mean identical. Insubstantial or minor differences in the degree or amount of skill, effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. (13) Moreover, the courts recognize that differences in subject matter and differences in allocation of time among various tasks do not necessarily defeat the equality of jobs. (14)

The employer must prove substantial additional duties of the higher paid employees, not assigned to the lower paid employees, to argue successfully that the level of responsibility is unequal. (15) "These additional duties must be substantial: `to argue that any difference in ... responsibility renders jobs unequal is manifestly incorrect as a matter of law.'" (16)

Within Any Establishment

The term "establishment" refers to a distinct physical place of business. (17) Two or more locations may constitute an establishment where there is integration of activities at such locations, centralized control of activities at such locations, centralized personnel activities and policies, and utilization of centrally imposed pay practices applied on a system-wide, area-wide or other geographical-wide basis throughout such locations. (18)

Defendant's Affirmative Defenses

Once a prima facie case has been established, the burden shifts to the defendant to prove, by a preponderance of the evidence, that the wage differential is justified by (1) a seniority system, (2) a merit system, (3) a system pegging earnings to quality or quantity of production, or (4) any other factor other than sex. (19) Explanations for the wage differential of employees based on reasons other than gender are affirmative defenses for which the defendant bears the burden of proof. (20)

If the defendant fails to justify the wage differential under any of the four affirmative defenses set forth above, liability automatically is established. The plaintiff need not show intentional discrimination to establish liability under the Equal Pay Act. (21)

Seniority System

A bona fide seniority system allocates rights, benefits, and wages according to an employee's length of employment. This defense has failed when applied inconsistently. (22)

Recently, courts have considered whether an employer's refusal to restore service credit for pregnancy related leave taken prior to the passage of the Pregnancy Discrimination Act to its female employees constitutes a violation of the Equal Pay Act. (23) In EEOC v. Bell Atlantic Corporation, (24) the company's retirement benefits were calculated according to length of service and the retirement benefits for female employees who were deprived of full service credit for pregnancy related leave prior to the passage of the Pregnancy Discrimination Act would therefore be lower than retirement benefits for males who were absent for nonpregnancy related reasons. The court found this a violation of the Equal Pay Act. In Ameritech Benefit Plan Committee v. Communication Workers of America, (25) however, the Seventh Circuit reached the opposite result on the same set of facts, finding that the disparate benefits were the result of a bona fide seniority system, an affirmative defense to the Equal Pay Act. (26)

Merit System

A merit system allocates rights, benefits, and wages according to an employee's job related performance. To constitute a valid defense, the merit system must be an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria. Employees must be aware of the merit system. (27) Subjective evaluations of employment do not satisfy this affirmative defense. (28) Moreover, a merit system must assess an employee's performance, not simply the duties of the positions. (29) The merit system defense cannot be invoked without an employer-employee relationship in existence. (30)

To the extent an employer does not have a merit system sufficiently systematic to constitute an affirmative defense, nothing precludes an employer from justifying a wage disparity based on job performance under the factor "other than sex" affirmative defense. Unlike Title VII, which requires the employer merely to articulate a legitimate nondiscriminatory reason for the challenged action, the Equal Pay Act requires the employer to prove this defense. (31)

System Measuring Earnings by Quantity or Quality of Production

Like the affirmative defenses set forth above, this system must be based on predetermined criteria, it must be communicated to employees, it must be even-handedly applied to employees of both sexes, and the quantity element refers to equal dollar per unit compensation rates. In Bence v. Detroit Health Corp., (32) the employer's male and female managers' earnings consisted solely of commissions based on the number of memberships sold. The male managers received 7.5 percent of gross male membership sales and the female managers received 5 percent of gross female membership sales. A similar commission differential existed between male assistant managers, 4.5 percent, and female assistant managers, 3 percent. The employer asserted that its pay differential constituted a system measuring earnings by quantity or quality of production based on evidence that the volume of membership sales to women was 50 percent higher than the volume of sales to men. Further, the employer provided evidence that the differential in commission rates resulted in substantially equal wages for the males and the females which the employer alleged was its aim and was justified by the third and fourth exceptions of the Equal Pay Act.

These defenses were rejected on the grounds that the quantity test refers to equal dollar per unit compensation rates and that here, the females had to produce more to be paid the same as men. Moreover, the quality test was not met because it was not easier to sell memberships to women than to men and there was no difference between the memberships sold to men and women. It therefore was a violation to pay women lower incentive rates than men for the same work.

In Hodgson v. Robert Hall Clothes, Inc., (33) however, men in men's clothing department were paid more than women in women's clothing department for performance of substantially equal work. The employer argued that the greater economic benefit from the sales of men's clothes in comparison to women's clothes constituted a factor other than sex. The court accepted this argument and rejected the government's argument that the fourth affirmative defense was limited to factors related to job performance or ones typically used in setting wage scales, not just any factor. The court held that economic benefit could be a factor other than sex.

Any Other Factor Other Than Sex

The literal language of this defense suggests that any factor other than sex could justify a wage differential between the sexes. Not only must the factor be sex neutral, the Second, Sixth, Ninth, and Eleventh Circuits require the factor to be job or business related. (34) As the catchall defense, it is limited only by an employer's imagination, though there are well recognized defenses which fall within this exception.

As noted earlier, when assessing the equality of jobs, only the jobs themselves, and not the persons performing the jobs, are relevant. With regard to this affirmative defense, however, the relative qualifications of the persons performing the jobs becomes relevant if the employer claims that the wage differential is based on an employee's superior qualifications. (35)

A formal classification system, found in government and large corporations is not a defense per se to a claim of unequal wages nor is a lengthy freeze on reclassifications a defense when sex-based wage disparities are apparent. (36)

An employee's prior salary sometimes is asserted as a factor other than sex with mixed results. Generally, the courts regard this defense cautiously, since reliance on prior salary as a factor other than sex can perpetuate past pay discrimination. (37)

Closely related to the issue of prior salary is one in which an employer "red-circles" an employee's salary. According to EEOC's regulations, (38) an employer may be justified in paying higher wages to an employee in a lower paying job without violating the Equal Pay Act. Reasons for assigning a higher paid employee to a lower paying job and retaining his wage rate despite the existence of lower paid employees of the opposite sex might be a temporary assignment to the lower paying job until the more demanding job is available again or accommodating an employee's illness. Like prior salary as a factor other than sex, however, courts are mindful that the practice of red-circling must not perpetuate past pay discrimination. (39) Another court approved of a company's policy of protecting the employees' prior salary and grade levels if they move to lower paying positions without any mention that assignments to the lower paid positions were temporary. (40) The concept of "red-circling" has been rejected, however, when used in the context of outside hires. (41)

Similar to prior salary and red-circle rates, an employer commonly relies on "market" as a factor other than sex. Courts also regard this defense with caution as the market tends to value male workers more highly than female workers. (42)

The head of household defense has been asserted under the fourth affirmative defense when the employer provides greater wages or benefits to one sex over the other based on an assumption that head of household has greater financial obligations. According to EEOC Regulations, (43) this defense is to be closely scrutinized since it has no relation to the requirements of the job or to the individual's performance on the job. The defense was rejected in EEOC v. Fremont Christian School, (44) wherein a religious school, based on its religious beliefs, provided health insurance only to heads of households which it determined to mean single persons and married men. Married women were not covered. Because, according to the employer's belief, only men could constitute heads of households, the employer's defense could not be based on a factor other than sex.

Similarly, in Dole v. Shenandoah Baptist Church, (45) the court rejected this defense asserted by a religious school which paid a head of household salary supplement to married male teachers but not to married female teachers. The school unsuccessfully argued that the wage differential was based not on sex but on marital status. Because the supplement was paid to some single male teachers and to divorced mothers with dependents, the court held that the employer's deviation from its own policy invalidated its policy as a factor other than sex.

In EEOC v. J.C. Penney Co., Inc., (46) the EEOC claimed, however, that the defendant's limitation of its employee medical and dental plan to spouses of heads of household, the definition of which is an employee who earns more than half of the couple's income, is a violation of Title VII and the Equal Pay Act. The court rejected this argument and held that the employer's plan, meant to benefit the largest number of employees with the greatest needs and to keep the cost of plan as low as possible so that the needy can afford coverage, constituted a legitimate business justification and a factor other than sex. The same result was reached under Title VII in Wambheim v. J C. Penney Co., Inc., (47) wherein the court upheld the employer's rule providing medical coverage for an employee's spouse only if the employee earned more than the spouse. The court accepted this rule as legitimate with overriding business justifications based on this desire of the employer to benefit the largest number of employees with the greatest needs and to keep the cost of the plan as low as possible so that the needy could afford coverage.

Another common factor other than sex is an employer's reliance on a collective bargaining agreement. As noted above in the discussion of red-circling, the Supreme Court, in Corning Glass Works v. Brennan, (48) held that the employer's reliance on a new collective-bargaining agreement which abolished separate base wage rates between day and night inspectors and established uniform, sex-neutral base wage rates, yet "red-circled" rates for employees hired prior to the effective date of the agreement, was not a factor other than sex, as the agreement perpetuated the differential in base wages between day and night inspectors.

Similarly, in Laffey v. Northwest Airlines, (49) pursuant to prior Laffey decision ruling that female stewardesses be paid equal to male pursers and the expiration in 1973 of the union agreement, the defendant negotiated in 1974-75 a new contract which equalized the male and female pay retroactively for years 1974 and 1975 during which time the males and females were paid unequally under the expired contract and payment to the females was made in 1976. The defendant argued that the 1976 payment relieved it of paying liquidated damages for those two years since such a provision was a "standard feature of labor agreements in the airline industry." The court held that its "determination of an equal pay act violation leaves nothing for the union and the employer to bargain about" and the employer continued not to be in compliance for the years of 1974 and 1975 and had to compensate the stewardesses for the withholding period.

More recently, however, in Lang v. Kohl Food Stores, Inc., (50) female grocery store employees brought a class action alleging that produce workers, who were mostly men, received higher pay than bakery and deli workers, who were mostly women. Because the pay classifications were established by collective bargaining and no evidence revealed that the company steered applicants by sex or selectively offered them transfer opportunities, the court held that the agreement was a factor other than sex. Most recently, in Lissak v. United States of America, (51) the court accepted the employer's reliance on a collective bargaining agreement which, in effect, paid higher wages to less senior employees.

Damages

Both private individuals and the EEOC can bring suit for violations of the Equal Pay Act. Section 16(b) of the Fair Labor Standards Act (FLSA), (52) allows an employee to bring suit for the amount of underpaid wages and overtime compensation plus an equivalent amount of "liquidated damages" "Wages" is defined broadly to include all forms of compensation. Fringe benefits, such as medical, hospital, accident, and life insurance as well as retirement benefits, bonus plans, and leave are covered by the Equal Pay Act and may not be administered in a discriminatory fashion. (53) The EEOC may sue for back pay and liquidated damages under Section 16(c) of the Act, (54) or they may seek injunctive relief under Section 17. (55) Section 17 expressly authorizes the courts to include the relief of "restraint of any withholding of payment" of unpaid wages found to be due to employees. Thus, the request for an injunction will normally ask the court to restrain the withholding by the employer of such underpayments. The EEOC's suit under 16(c) or 17 terminates the private rights of all employees whether specifically named or otherwise embraced within the group on behalf of whom the EEOC has brought suit unless they have previously instituted action.

Equal pay comparisons are based on the wage rate that a male of equal seniority and experience would have been paid. Where comparison is with a male predecessor or a male who ceases to be employed, the back wages include the increases he would have received had he continued to be employed. Generally, when there are more than one higher paid comparator, the average salary is used. (56)

A finding of willfulness under the Equal Pay Act triggers a three-year, rather than two-year, statute of limitations and thereby allows the claimant to collect three years, rather than two years, backpay. The Supreme Court in McLaughlin v. Richland Shoe Co., (57) adopted the Thurston definition of willful conduct: "a violation is willful if the company knew or showed reckless disregard whether its conduct was prohibited by the statute." (58)

An award of liquidated damages under Sections 16(b) and (c) of the FLSA is automatic in an amount equal to "the unpaid minimum wage or overtime compensation" unless pursuant to Section 11 of the Portal-to-Portal Act. The employer meets his burden in satisfying the court that the act or omission giving rise to the action was both (1) done in good faith and (2) he had reasonable grounds for believing his act or omission was not in violation of the FLSA in which event the court may in its discretion award no liquidated damages or any amount thereof. Section 16(b) also provides for "a reasonable attorney's fee to be paid by the defendant."

Retaliation

The FLSA provision prohibiting retaliation is 29 U.S.C. Section 215 (a)(3). The language appears to limit a cause of action under this section to an individual who has filed a complaint, instituted or caused to be instituted any proceeding, or testified or is about to testify in any such proceeding. In other words, informal complaints to any employer could not trigger the action. Presently seven circuits have held, however, that such informal complaints do trigger a cause of action under this section. (59) One circuit dissents on the basis of the unambiguous language of the section. (60) The majority relies upon the fact that the FLSA is broadly remedial and upon the Supreme Court's decision in Mitchell v. Robert DeMario Jewelry, Inc., (61) where the Court emphasized that the anti-retaliation provision was designed to encourage employees to report suspected wage and hour violations by employers to the Department of Labor and prevent fear of economic retaliation for voicing grievances about substandard conditions.

When the FLSA was enacted in 1938, compensatory and punitive damages were not available under Section 16(b) for any violation of the Act. The FLSA provided as remedies the statutory wages and overtime compensation as well as an additional equal amount as liquidated damages plus attorneys fees. Yet nearly forty years later, in 1977, Congress deliberately revisited this remedial section to broaden the relief available to an employee where it is found that the employer violated the FLSA by retaliating against that employee. Section 216(b) therefore was amended to provide the following:

The above section continues to make clear that the government may seek the same relief through the provision authorizing government initiated actions, so long as the suit terminates the right of an employee to bring a private action, as specifically set forth in Section 16(b). Only the Seventh Circuit allows for compensatory and punitive damages for retaliation committed under the Equal Pay Act. (62)

Conclusion

This seemingly simple statute is complex, yet can yield favorable results. Consider using it in your next sex-based wage case.

Endnotes

(1.) 29 U.S.C. § 206(d)(1).

(2.) Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322, 324 (4th Cir. 1989); Fowler v. Land Management Groupe, Inc., 978 F.2d 158, 161 (4th Cir. 1992).

(3.) 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188 at 196-97 (1974); Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir. 1986).

(4.) Ryduchowski v. The Port Authority of New York and New Jersey, 203 F.3d 135 (2d Cir.), cert. denied, 530 U.S. 1276 (2000); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 n.17 (4th Cir. 1994); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992); Molden v. United States, 11 Cl. Ct. 604 (1987); Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986); Sinclair v. Automobile Club of Okla., 733 F.2d 726, 729 (10th Cir. 1984); Hodgson v. Am. Bank of Commerce, 447 F. 2d 416, 423 (5th Cir. 1971).

(5.) 29 C.F.R. § 1620.15.

(6.) 29 C.F.R. § 1620.16.

(7.) 29 C.F.R. § 1620.17.

(8.) See Wirtz v. Basic, Inc., 256 F. Supp. 786, 790 (D.Nev. 1966); Christopher v. State of Iowa, 559 F.2d 1135, 1138, n. 14 (8th Cir. 1977).

(9.) 29 C.F.R. § 1620.15. See Soto v. Adams Elevator Equipment Co., 941 F.2d 543, 548-51 (7th Cir. 1991) (evidence showed work of female buyer who held the job over one year prior to the male's hire was equal to male buyer even though he had prior purchasing experience and a college degree); Peltier v. City of Fargo, 533 F.2d 374, 377-79 (8th Cir. 1976) (work of female car markers equal to that of male car markers; fact that males had police academy training and were members of the police force did not justify 50 percent higher pay based on their flexibility for on-call police work since they rarely, if ever, performed on-call police duties).

(10.) See, e.g., Katz v. School District of Clayton, Mo., 557 F.2d 153, 156-57 (8th Cir. 1977) (teacher's aide performing duties of teacher); Thompson v. Sawyer, 678 F.2d 257, 271-76 (D.C. Cir. 1982) (female bindery workers' jobs equal to male bookbinders, although they used different types of machines); Odomes v. Nucare, 653 F.2d 246, 250-51 (6th Cir. 1981) (female nurses aides' work substantially equal to male orderlies' work); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 451 (D.C. Cir. 1976) (female stewardess work equal to male purser); Usery v. Allegheny County Institute District, 544 F.2d 148, 152-53 (3d Cir. 1976) (male barbers and female beauticians held equal jobs); Brennan v. Loveman's City Stores, Inc., 479 F.2d 235, 237-38 (5th Cir. 1973) (tailor and seamstress work equal); Brennan v. J. M. Fields, Inc., 488 F.2d 443,447 (5th Cir. 1973) (different method of ordering replacement merchandise did not render male hardline and female softline jobs unequal).

(11.) 29 C.F.R. § 1620.18. See also Corning Glass Works v. Brennan, 417 U.S. 188, 202 (1974).

(12.) See Schultz v. American Can Co.-Dixie Products, 424 F.2d 356, 361 (8th Cir. 1970) (since all males received extra pay, not just those performing the extra duties, these extra duties could not have the economic value that the employer attributed to them); Brennan v. Davis Community Hosp., 538 F.2d 859, 863 (10th Cir. 1976) (Defendant's justification for paying janitors a greater wage rate than maids on the basis that the janitors performed jobs requiring extra effort than jobs that the maids performed, e.g., operating a floor stripping machine, stocking a pop machine, carrying out garbage, using a ladder, and shoveling snow was rejected because maids, on occasion, carded out garbage, were trained on the floor machine, used ladders, and also performed extra duties that the janitors did not perform, e.g., "cleaning bathroom sinks and toilets, stripping beds, cleaning mattresses, and making beds"); Schultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970) (qualified members of lower paid sex are not given opportunity to do the extra work); Brennan v. Prince William Hospital Corp., 503 F.2d 282, 285 (4th Cir. 1974) (same); Hodgson v. Security National Bank of Sioux City, 460 F.2d 57 (8th Cir. 1974) (the supposed extra duties do not in fact exist); Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1971) (the extra task consumes a minimal amount of time and is of peripheral importance).

(13.) See Marshall v. School Bd., Hermitage School Dist., 599 F.2d 1220 (3rd Cir. 1979); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 348 (4th Cir. 1994); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1137 (5th Cir. 1983); Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1260 (7th Cir. 1985); Clymore v. Far-Mar-Co., Inc., 709 F.2d 499, 503 (8th Cir. 1983); Broadus v. O.K. Industries, Inc., 226 F.3d 937 (8th Cir. 2000) (comparison to nonimmediate successors appropriate); EEOC v. First Citizens Bank of Billings, 758 F.2d 397, 402 (9th Cir.); Tidwell v. Ford Howard Corp., 989 F.2d 406, 408 (10th Cir. 1993).

(14.) 29 C.F.R. § 1620.14.

(15.) See Ellison v. U.S., 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cas. (BNA) 955 (Cl. Ct. 1992); Crabtree v. Baptist Hospital, 45 Fair Empl. Prac. Cas. (BNA) 1670 (N.D. Ala. 1983), reversed and remanded for recalculation of damages, 749 F.2d 1501 (11th Cir. 1985); Hatton v. Hunt, 780 E Supp. 1157 (W.D. Tenn.. 1991); Mullenix v. Forsyth Dental Infirmary, 965 E Supp. 120 (D. Mass. 1996); Dubowsky v. Stem, Lavinthal, 922 E Supp. 985 (D.N.J. 1996); McMillan v. Mass. SPCA, 140 F.3d 288 (1st Cir. 1998); Labarge v. Chase Manhattan Bank, 77 Fair Empl. Prac. Cas. (BNA) 161 (N.D.N.Y. 1998).

(16.) Brennan v. Prince William Hospital Corp., 503 F.2d 282, 286 (4th Cir. 1974).

(17.) Fallon v. State of Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989) (internal quotation marks omitted) (citations omitted). See also EEOC v. Shelby County Government, 707 F. Supp. 969, 983 (WD. Tenn. 1988) ("Although [the positions of cashier and exhibits custodian are] responsible jobs, there is little difference between the degree of responsibility required for [those] jobs and other positions in the office"); Usery v. Johnson, 436 E Supp. 35 (D.N.D. 1977) (whether assigned to sell items in retail store's furniture department, stationery department, or books, toys, and teaching aids department, sales jobs were substantially equal); Brennan v. Sears, Roebuck & Co., 410 F. Supp. 84 (N.D. Iowa 1976) (despite differences in areas managed and that no two division manager jobs were wholly identical, the male and female division managers performed equal work); Ridgeway v. United Hospital, 14 Fair Empl. Prac. Cas. (BNA) 286 (D. Minn. 1976); reversed and remanded for recalculation of damages, 563 F.2d 923 (8th Cir. 1977) (the jobs of female ophthalmology technician and male urology assistant were substantially equal--both entailed surgical assistance, recording surgical procedures, and instructing employees on matters relating to the operation of their respective departments); Lavin-McEleney v. Marist College, 239 F.3d 476 (2d Cir. 2001) (female professor of criminal justice and male professor of psychology were appropriate comparators).

(18.) 29 C.F.R. § 1620.9(a). See also Phillips Co. v. Walling, 324 U.S. 490 (1945).

(19.) 29 C.F.R. § 1620.9 (b). See, e.g., Shultz v. Corning Glass Works, 319 E Supp. 1161 (W.D.N.Y. 1970), aff'd sub nom, Hodgson v. Corning Glass Works, 474 F.2d 226 (2d Cir. 1973), aff'd sub nom, Corning Glass Works v. Brennan, 417 U.S. 188 (1974) (The company had three plants. A factory produced pyrex products and B and C factories produced optical products. Pressware plant produced television products A factory and B and C factories are located back-to-back and are connected by passageways. Pressware plant is located one mile away from the other two plants. Employees are able to transfer between A factory and B and C plants while employees work only in Pressware plant. All employees are represented by one union and covered by one collective bargaining agreement. All payroll checks are written on the same computer from information supplied by all the plants. All applications for positions in all the plants are made to a central employment office but the final preemployment interview and decision to hire is made at each plant: held A plant and B and C plants constitute a single establishment because of their proximity and the fact that employees are transferred from plant to plant and the Pressware plant constitutes a separate establishment because of its lack of proximity and the fact that no employees transfer to the A plant or B and C plants); Brennan v. Goose Creek Consolidated Independent School District, 519 F.2d 53, 56-58 (5th Cir. 1975) (school district consisting of several schools in different locations constitutes single establishment because central administration of the district hired janitors, determined wages, assigned them to school, switched assignments from building to building, and controlled the work schedule and duties of the employees); Marshall v. Dallas Independent School District, 605 F.2d 191 (5th Cir. 1979) (same); Tomchek-May v. Brown County, 581 F. Supp. 1163, 1165-69 (E.D. Wis. 1984) (although highway and mental health departments are physically separated and located in adjacent towns, county as a whole constitutes a single establishment); Grumbine v. United States, 586 F. Supp. 1144 (D.D.C. 1984) (nine regional offices of U.S. Custom Service constitute single establishment where head office regulated and controlled regional offices, pay and budget process. The regional offices performed the same basic functions regardless of size or location, operated under standard position descriptions for all employees in comparable positions and thereafter the federal civil service system in its entirety constitutes an establishment); EEOC v. State of Delaware Dept. of Health and Social Services, 1986 WL 15944 (D. Del.) (106 female Public Health Nurses claimed that they were paid less than male Physician's Assistants working in various clinics at separate locations; comparator worked at Williams Center clinic where only 17 of the nurses worked; court rejected EEOC's position that all clinics considered as establishment because they were centrally administered finding that each clinic was administratively independent and that the nurses and physician assistants were not hired, fired or transferred between clinics from a central office and central office had no direct contact with or authority over the nurses; held each clinic a separate establishment); Brownlee v. Gay and Taylor, Inc., 642 F. Supp. 347, 351-52 (D. Kan. 1985), aff'd, 861 F.2d 1222 (10th Cir. 1988) (all defendant's district offices constitute one establishment where pay standards apply for an entire business entity regardless of "where the employee is located").

(20.) 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir. 1986).

(21.) Brune v. BASF Corporation, 234 F.3d 1267 (6th Cir. 2000).

(22.) Brinkley-Obu v. Hughes Training, Inc., 36 F 3d 336, 344 n. 17 (4th Cir. 1994).

(23.) See Schultz v. Brookhaven General Hospital, 305 F. Supp. 424, 425 (N.D. Tex. 1969) (pay differential between orderlies and aides not justified by a seniority system as evidence revealed several instances of newly hired orderlies being paid more than a long time aide). Moreover, the system must be formal and guided by objective, written standards. Brennan v. Victoria Bank and Trust Co., 493 F.2d 896, 900-01 (5th Cir. 1974). In addition, the workforce must be aware that such system is in place. ,gee EEOC v. Whitin Mach., 635 F.2d 1095, 1097 (4th Cir. 1980) (court rejects defendant's claim that wage differential between male and female customer correspondents was justified by an informal seniority system on ground that seniority system was never communicated to employees). See also Mulhall v. Advance Sec. Inc., 19 F.3d 586, 599 (11th Cir.) (difference between male and female pay because of male's ten year seniority not justified by seniority system which requires a formal seniority structure).

(24.) EEOC v. Bell Atlantic Corp., 1999 WL 386725 (S.D.N.Y. 1999).

(25.) Ameritech Benefit Plan Committee v. Communication Workers of America, 220 F.3d 814 (7th Cir. 2000), cert. denied, 121 S.Ct. 883 (2001).

(26.) The Ameritech court also determined that the action was untimely, in that the employer's calculation of length of service occurred well beyond the limitations period, despite the fact that the effects of the calculation were ongoing. This same result was reached in Carter v. West Publishing Company, 225 F.3d 1258 (11th Cir. 2000), wherein the court held untimely the action of female employees, who complained they unlawfully were denied stock options years earlier, though the males who then had received the stock options currently were receiving dividends.

(27.) See Ryduchowski v. The Port Authority of New York and New Jersey, 203 F.3d 135 (2d Cir. 2000), rejecting this affirmative defense for failing to meet the above criteria. See also Brock v. Georgia Southwestern College, 765 F.2d at 1036 (system operated in an informal and unsystematic manner, teachers were unaware of any system and evaluations subjective often on basis of "ill-informed judgments"); EEOC v. Aetna Ins. Co., 616 F.2d 719, 725 (4th Cir. 1980) (whether written or informal, "a merit `system' must be an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria ... the employees must be aware of it; and it must not be based on sex").

(28.) See Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970).

(29.) See Morgando v. Birmingham-Jefferson Cty. Civil Defense, 706 F.2d 1184, 1188 (11th Cir. 1983) (differential in pay between male Shelter Officer and female Training and Education Officer not justified by merit system exception when "merit system" consisted of written job descriptions stating jobs' pay since this was no system for advancement or reward for merit); Maxwell v. City of Tucson, 803 F.2d 444, 447 (9th Cir. 1986) (position and pay classification system not merit system; compliance with civil service requirements not sufficient).

(30.) See Winkes v. Brown University, 1983 WL 2105 (D.R.I.) (female art history professor paid more than male art history professor; Brown justified the payment as necessary to retain the female who had an offer from another university and claimed outside offer reflected her scholarly merit, thus invoking the merit system defense; held "inducement increase in salary ... not equivalent to merit increase pursuant to a valid merit system ... subjective evaluation, no merit criteria exist, no performance standards for tenured professor promulgated, no systematic or objective standards used in evaluating the comparability of the offering institution) reversed on other grounds 747 F.2d 792, 797 (CA 1 1984)(academic freedom should be interfered with only for well-demonstrated, substantive reasons).

(31.) See Ellison v. United States, 25 Cl. Ct. 481, 495-97 (1992) (female Branch Chief of Managerial Assessment and Development of the U.S. Marshal's Service, performing work equal to GS 14 male Branch Chiefs, repeatedly was denied promotion; employer claimed that performance problems, i.e., factors other than sex, justified the denial of her promotion--disloyalty to her immediate supervisors and her inability to "forge a relationship" with her three supervisors; employer failed to meet its burden to prove this defense based on employee's outstanding performance ratings, a Merit Award, and ample evidence of sex bias). But see Kahn v. Dean & Fulkerson, 238 F.3d 421 (6th Cir. 2000) (unpublished) (summary judgment granted to employer law firm despite female attorney's attempt to prove that its asserted reason for pay disparity was pretext).

(32.) Bence v. Detroit Health Corp, 712 F.2d 1024, 1029 (6th Cir. 1983).

(33.) Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3rd Cir. 1983).

(34.) See Aldrich v. Randolph Central School District, 963 F.2d 520 (2d Cir. 1992); EEOC v. J.C. Penney Co., 843 F.2d 249 (6th Cir. 1988); Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982); Glenn v. General Motors Corp., 841 F.2d 1567 (11th Cir. 1988). But see Fallon v. State of Ill., 882 F.2d 1206, 1211-12 (7th Cir. 1989) (male Veterans Service Officers paid more than female Veterans Service Officer Associates for performance of substantially equal work; court accepted defendant's justification for pay disparity: that Veterans Service Officers by statute must be wartime veterans. Court specifically rejected that "factor other than sex" had to be job-related or business-related and found state's rationale "eminently reasonable"); Strecker v. Grand Forks County Social Servs. Bd., 640 F.2d 96 (8th Cir. 1981) (female paid less than male who succeeded her because state civil service classification provided for higher pay for the qualifications of the male which the female did not possess).

(35.) See Preston v. Berendsen Fluid Power, 125 F. Supp. 2d 245 (W.D. Mich. 2000) (question for jury as to whether higher paid males' greater technical education and experience, as opposed to employer's discriminatory animus, justified greater pay); EEOC v. Aetna Insurance Co., 616 F.2d 719, 725-26 (4th Cir. 1980) (disparity between male and female wages was based upon the male's experience and background in the commercial casualty field, especially sought by employer, two considerations that were not sex-linked); Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999) (female basketball coach earned less than male basketball coach; held pay differential was justified by male's greater experience and accomplishments); Hutchins v. International Brotherhood of Teamsters, 177 F.3d 1076 (8th Cir. 1999) (female union organizer paid less than most of her male counterparts; hem pay differential justified by the higher paid males' greater experience and education); Strecker v. Grand Forks County Social Service Board, 640 F.2d 96, 100-03 (8th Cir. 1980) (female paid less than male who succeeded her because state civil service classification provided for higher pay for the qualifications of the male which the female did not possess).

(36.) See Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 525-27 (2d Cir. 1992) (female cleaner, a non civil service position, is paid less than male custodian, a civil service position, for performance of substantially equal work; though female was unable to score in top three of civil service test and thus be eligible for custodian position, the court rejected employer's position that its classification system is sex-neutral on its face and thus constitutes a factor other than sex; held that the employer did not satisfy its burden to prove "that the job classification system resulting in differential pay is rooted in legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue"). See Molden v. United States, 11 Cl. Ct. 604, 612 (1987) (male OFCCP EOSs in Chicago office paid at a higher grade level than two female EOSs for substantially equal work due to a freeze on promotions while defendant implemented job reclassification program to solve overgrading problem, which system it claimed was sex neutral and thus constituted factor other than sex; held although the system may be sex neutral, the application of the system in the Chicago office was not; the existence of the wage disparities which were known by responsible officials and were not remedied and thus cannot be covered by the fourth exemption of the EPA; five years taken by agency to remedy seven years of wage discrimination was unreasonable); EEOC v. Maricopa County Community College, 736 F.2d 510, 515 (9th Cir. 1984) (female student loan clerk paid less than male financial aid assistant for substantially equal work was recommended by supervisor for promotion in 1977; administration froze all reclassification requests while it pursued a classification study and claimed the freeze and the study a factor other than sex; female promoted in 1979 without retroactive back pay or seniority; held although an employer should be allowed a reasonable time for reclassification of a position or to require an employee to stop working beyond her existing classification, here defendant knowingly allowed her to work in the higher paid position for two years before it promoted her without back pay and seniority; "the reason for this wage differential was the availability of [the female] to work at the lower wage" and thus was not a factor other than sex).

(37.) Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982) (use of factor of prior salary in setting sales agent wage resulted in women on average being paid less than males which employer claimed was a factor other than sex; while recognizing neutral factors could mask discrimination, and rejecting that the fourth affirmative defense was limited to job-evaluation systems, court concluded that defense should include an acceptable business reason and remanded the case to allow the employer to reasonably explain the business reason for using prior salary for the setting of wages); Glenn v. General Motors Corp., 841 F.2d 1567, 1570 (11th Cir.) (wage differential between lower paid female follow up clerks coming from lower paid jobs and higher paid male follow up clerks coming from higher paid jobs was not justified by prior salary). But see Riordan v. Kempiners, 831 F.2d 690, 699 (7th Cir. 1987) (female supervisor paid less than her male subordinates and also her male successor, both of whom were federal employees who worked in the Sexually Transmitted Diseases Unit of the Illinois Department of Health and who were converted to state employees; held the higher salaries of formerly federal employees was a factor other than sex); Covington v. Southern Illinois Univ., 816 F.2d 317, 321 (7th Cir.) (female successor in School of Art paid less than her male predecessor, when transferred from the School of Music retained his salary in the School of Art; held university had a sex-neutral policy of maintaining an employee's salary upon a change of assignment within the university which constituted a factor other than sex).

(38.) 29 C.F.R. § 1620.26.

(39.) See Corning Glass Works v. Brennan, 417 U.S. 188, 228 (1974) (new collective-bargaining agreement abolished separate base wage rate for day and night inspectors and established a uniform, sex-neutral base wage for day and night shift inspectors, however, it further provided a "red circle" rate for employees hired prior to the effective date of the agreement, thus perpetuating the differential in base wages between day and night inspectors; held "Had the company equalized the base-wage rates of male and female inspectors on the effective date of the Act, as the law required, the day inspectors in 1969 would have been entitled to the same higher `red circle' rate the company provided for night inspectors. We therefore conclude that on the facts of this case, the company's continued discrimination in base wages between night and day workers, though phrased in terms of a neutral factor other than sex, nevertheless operated to perpetuate the effects of the company's prior illegal practice of paying women less than men for equal work"). See, e.g., Hughmanick v. County of Santa Clara, 210 F.3d 383 (9th Cir. 2000) (unpublished) (two male employees were higher paid because they negotiated agreement that during a reorganization they would not be reclassified or demoted; hem that this was a valid factor other than sex).

(40.) See Rodriguez v. Smithkline Beecham, 224 F.3d 1, 6 (1st Cir. 2000).

(41.) See Mulhall v. Advance Sec., Inc., 19 F.3d 586, 596-97 (11th Cir.) (female security systems executive paid less than male comparators performing substantially equal work; court rejects employer's justification for males' higher wages on grounds that they were former owners or principals in businesses bought by the employer and that the wages were part of the negotiation of the purchases as constituting a factor other than sex).

(42.) See Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974) ("As [Corning's] history revealed, `the higher night rate was in large part the product of the generally higher wage level of male workers and the need to compensate them for performing what were regarded as demeaning tasks.' ... The differential arose simply because men would not work at the low rates paid women inspectors, and it reflected a job market in which Corning could pay women less than men for the same work. That the company took advantage of such a situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principal of equal pay for equal work"); Laffey v. Northwest Airlines, Inc., 567 F.2d at 451 ("The contrast in pay is a consequence of the historical willingness of women to accept inferior financial rewards for equivalent work--precisely the outmoded practice which the Equal Pay Act sought to eradicate"); Brennan v. City Stores, Inc., 479 F.2d 235,241 n. 12 (5th Cir. 1973) ("[company] contends that the tighter market for salesmen and male tailors justifies it in hiring men with such skills at a rate higher than that paid to obtain women of similar skills. While factors other than sex (customer embarrassment primarily) justify the employer in seeking male personnel to work in conjunction with selling and fitting male clothing, this is no excuse for hiring saleswomen and seamstresses at lesser rates simply because the market will bear it. Just such disparities were what Congress intended to correct by this legislation").

(43.) 29 C.F.R. § 1620.21.

(44.) EEOC v. Fremont Christian School, 781 F.2d 1362, 1366-67 (9th Cir. 1986).

(45.) Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1400-01 (4th Cir.).

(46.) EEOC v. J. C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988).

(47.) Id.

(48.) Corning Glass Works v. Brennan, 417 U.S. 188, 228 (1974).

(49.) Laffey v. Northwest Airlines, 740 F.2d 1071, 1098-1100 (D.C. Cir. 1984).

(50.) Lang v. Kohl's Food Stores, Inc., 217 F.3d 919 (7th Cir. 2000), cert. denied, 121 S.Ct. 771 (2001).

(51.) Lissak v. United States of America, 2001 WL 39513 (Fed. Cl., Apr. 17, 2001).

(52.) 29 U.S.C. § 216 Co).

(53.) 29 C.F.R. § 1620.11.

(54.) 29 U.S.C. § 16(c).

(55.) 29 U.S.C. § 217.

(56.) See EEOC v. Liggett & Myers Co., 690 F.2d 1072, 1077-78 (4th Cir. 1982) (if an individual comparable male cannot be found for comparison, each female's wages should be compared with the average salary paid to male employees doing comparable work); McMillan v. Mass. Soc. for Prey. of Cruelty to Animals, 140 F.3d 288, 305 (1st Cir. 1998) (jury award of back pay based on average of salaries of higher paid males); EEOC v. Mike Smith Pontiac, 896 F.2d 524, 530 (11th Cir. 1990) (court limited back pay of female car salesperson to average tenure of male salespersons); Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d at 1534 (trial court did not abuse discretion by awarding Miranda the difference between her salary and the average salary paid to other male buyers, both in terms of weekly pay and year-end salary adjustment).

(57.) McLanghlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

(58.) Trans World Airlines v. Thurston, 469 U.S. 111, 128-29 (1985).

(59.) Valerio v. Putnam Associates, Inc., 173 F.3d 35 (1st Cir. 1999); Brock v. Richardson, 812 F.2d 121, 124 (3rd Cir. 1987); EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir. 1992); Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975); Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); Love v. ReMax of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir. 1989).

(60.) See Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2nd Cir. 1993).

(61.) Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960).

(62.) Travis v. Gary Community Mental Health Center, 921 F.2d 108, 111 (7th Cir. 1990); Soto v. Adams Elevator Equipment Co., 941 F.2d 543, 551 (7th Cir. 1991).

Debra M. Lawrence is a supervisory trial attorney with the Baltimore District Office of the Equal Employment Opportunity Commission. The author gratefully acknowledges the relentless dedication of retired EEOC supervisor), trial attorney and Equal Pay Act mentor Arlene T. Shadoan, who compiled much of the information contained herein and who continues to advocate for the increased awareness and enforcement of the Equal Pay Act. This article first appeared in the Employee Advocate published by the National Employment Lawyers Association.