Bertelson Law Office Weekly News

Workplace News Weekly

Topic of the Week  Pay Discrimination

Pay or compensation discrimination occurs when employees performing similar work do not receive similar pay. Pay discrimination also occurs when a difference in pay has an unlawful basis such as race or sex. Pay discrimination based on an employee's membership in a protected category like race, disability, or sex, is prohibited by anti-discrimination laws. Relevant laws include Title VII, the ADA and ADEA, state anti-discrimination laws, and the Equal Pay Act which specifically addresses pay discrimination based on sex. This page will explain pay or compensation discrimination in more detail.

What criteria is used to determine whether or not an employer has committed pay or compensation discrimination?

Under the Equal Pay Act (EPA), a claimant “does not have to prove that two jobs are identical but rather must show that the “skill, effort and responsibility required in the performance of the jobs are substantially equal.” Arrington v. Cobb County, 139 F.3d 865, 876 (11th Cir. 1998).Work is “substantially equal” for purposes of the EPA if it requires “equal skill, effort, and responsibility.” 29 U.S.C. § 206(d)(l). This determination turns on the actual content of the job-not mere job descriptions or titles. EEOC v. Cent. Kan. Med. Ctr., 705 F.2d 1270, 1273 (10th Cir. 1983).

The law looks to many factors when determining whether or not pay/compensation discrimination has occurred. Each of these factors is summarized in categories below:

skill: measured by factors such as the experience, ability, education, and training required to perform the job. The critical issue is what skills are required for the job, not what skills the individual employees may have.

effort: the amount of physical or mental exertion needed to perform the job.

responsibility: the degree of accountability required in performing the job.
working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.

establishment: The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment

Differences in pay are permitted when they are based on seniority, merit, quantity or quality of production. These are known as affirmative defenses and it is the employer’s responsibility to prove that they apply.

Thought of the Week

"This Bill of Rights is intended to be more than an extension of our current workplace protections for domestic workers. We see it as a statement of our collective values as Americans, a statement on how we respect all working people, regardless of whether they work in an office or in a home."

–Rep. Pramila Jayapal, Sen. Kamala Harris and NDWA President Ai-jen Poo on a new proposed National Domestic Workers Bill of Rights.

Weekly Comic by Jerry King

Blog of the Week

Philadelphia may be next city to pass a fair workweek law

Philadelphia, though, may become the next city to pass a fair workweek bill, with a measure introduced by Councilmember Helen Gym scheduled for Dec. 6 city council vote.

Top Five News Headlines

  1. Lawmakers Call for House to Investigate XPO After Workers’ Miscarriages
  2. Supreme Court Asked if Unions Can Represent Nonmembers
  3. Lawmakers Demand Investigation Of Labor Secretary Alex Acosta For Sex Abuser Plea Deal
  4. GM’s Plant Closures Might Have Broken Its Union Deal
  5. The surprisingly high number of Americans getting absolutely no raises

List of the Week

from Workplace Fairness

Top Searches in Discrimination This Week: 

  • Sexual/Gender Discrimination
  • Proving Employment Discrimination
  • Pay Discrimination
  • Religious Discrimination
  • Pregnancy Discrimination

 

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