Module 3--Equal Employment Opportunity Statutes and Civil Rights Flashcards
What is the Equal Pay Act?
The Equal Pay Act (EPA) of 1963 amended the FLSA and was the first of the Equal Employment
Opportunity (EEO) statutes. Its impact on compensation has been substantial.
■ Purpose: To prohibit the practice of different pay rates for men and women performing the same job. Equal work must receive equal pay.
■ Coverage
* Employers subject to the FLSA are also subject to the provisions of the Equal Pay Act.
* Applies to exempt and nonexempt employees
■ Enforcing agency
* Before 1979 the Wage and Hour Division of the Department of Labor enforced the provisions.
* Since 1979 the Equal Employment Opportunity Commission (EEOC) has enforced the EPA.
What is Prima Facie Case
The employer is responsible for upholding the provisions of the EPA. However, if the employee feels there is a violation, the burden of proof is on the employee. When the employee’s legal representative establishes sufficient proof to shift the burden of proof to the employer it is called establishing a prima facie case. “Prima facie” means based on the first impression; accepted as correct until proved otherwise. To establish a prima facie case, an employee must prove the following:
■ Receives lower wage than co-worker of the opposite gender
* A wage differential does not violate the EPA unless the two jobs being compared are
substantially similar with respect to all criteria.
■ Works in the same establishment
■ Performs equal work requiring substantially equal
* Skill (experience, training, education and abilities)
* Effort (physical or mental)
* Responsibility (degree of accountability and importance of the job to the employer)
* Working conditions (temperature, height, hazards)
What are the Prima Facie – Violations and Penalties?
■ Statute of limitations: the same as under the FLSA – 3 years to file if willful, 2 years if not willful. This is the maximum time from the date of the discriminatory event that the employee has to legally file the case in court.
■ Penalties * Back pay and interest on the back pay for up to 3 years if violation is willful, 2 years if violation is not willful.
* Liquidated damages in amount equal to back pay
* Injunction to restrain from violation of law and shipment of goods interstate which may result in temporary close down of operation or company
What are Affirmative Defenses Under EPA?
An employer can pay unequal wages to employees doing equal work but it must meet one of four criteria. Wage differentials are defensible if they are based on the following:
■ Seniority system: An employer may lawfully pay employees higher wages because they have greater seniority.
■ Merit system: An employer must prove that the pay disparity is based on a systematic evaluation of employee performance according to predetermined criteria.
■ Pay system: measures earnings by quality or quantity of production measurement systems
■ Any factor other than sex: This is the broadest affirmative defense. The following examples illustrate its application.
- “Red Circle” pay rates: An employer may demote a male employee to a job which is
substantially similar to jobs held by women and continue to pay his higher salary.
Maintaining an employee’s established wage rate is a valid factor other than gender where that wage rate did not violate the EPA before the demotion. - Job-related qualifications: An employer may pay higher wages to employees who possess skills (including education, training or other skills related to the job, but which are not necessary for the minimum acceptable performance of their job duties). The employer may pay a premium to attract a highly qualified individual for the job. This is also a factor other than gender. But employers may not pay employees of one gender more than another based on potential unrelated to the job.
- Training program: Pay
What are some Invalid Defenses Under EPA?
Invalid Defenses Under EPA
■ Lack of intent to discriminate
■ Market wage rates – It is not valid to pay female employees less than male employees for equal work simply because the prevailing wage rates paid by other employers are higher for male employees. However, market wage rates are a factor other than gender if an employer must pay that rate to attract qualified individuals, male or female, to perform the job in question.
■ Employee skills not related to the job
■ Collective bargaining agreement
- Simpson v. Merchants & Planters Bank, (8th Cir. 2006)
Facts: A female bank employee earned less money than a male employee. Both had attended the same banking schools and computer training, had equal accountability, equally positive evaluations and were held to the same standards regarding knowledge, after-hours work and representing the bank in the community. The bank claimed the male’s college degree made the difference.
Issue: Does the pay disparity violate the EPA? Why or why not?
Issue: Does the pay disparity violate the EPA? Why or why not?
Finding: Yes. The male employee’s college degree is not relevant to determining the skill required to perform the jobs, since all the skills needed at the Bank were on-the-job acquired.
- Winkes v. Brown University, 26 WH 1533 (1st Cir. 1984)
Facts: A female associate professor of art history was given a larger raise than a male associate professor of art history after the female received a job offer at a higher salary from another college.
Both professors had substantially similar job duties.
Issue: Does the pay disparity violate the EPA? Why or why not?
No. Pay disparity between substantially similar jobs establishes prima facie case. The
university rebutted by proving that the unequal pay raise was due to a factor other than sex – employer’s desire to match another college’s offer and keep the female professor.
- EEOC v. Shelby County Government, 48 F.E.P. Cases 757 (W.D. Tenn. 1988)
Facts: All employees categorized as Chief Principal Clerk, Principal Clerk and Deputy Clerk in County Criminal Court Clerk’s office performed substantially equal work, despite differences in job titles, where the core job duties for all employees in the same position were the same and employees moved frequently from one position to another with no additional training. However, male employees received higher compensation than the female employees.
Issue: Did the employer violate the EPA? Why or why not?
Yes. Although the employees in these categories had one of three different job titles,
the core job duties for all employees in all these positions were the same. These duties included typing, filing, handling legal documents, making entries in books and records, and entering data in the computer. Also the plaintiff established by a preponderance of the evidence that when females and males were grouped by date of hire the lowest paid male in each group earned more than the highest paid female in the group, thus establishing the unequal pay scale.
- Lemons v. City and County of Denver (10th Cir. 1980)
Facts: The City of Denver compared the wages of various nurse positions to wages paid to nurses in the community. The nurses argued this perpetuated the historical underpayment of jobs held by women and asserted their wages should instead be compared with non-nursing positions in the general administrative services job classification. The nurses were comparing their jobs to those that received higher pay on average and they claimed their jobs should be of equal worth to the City. The City maintained its method of determining pay rates provides equal pay for equal work.
Issue: Did the City violate the EPA? Why or why not?
No. The City cannot be required to reassess the worth of services in each position – a
departure from equal pay for equal work. Employers may consider the market when setting wage rates for genuinely different work.
What is Title VII of the Civil Rights Act of 1964?
The year after the Equal Pay Act, Congress passed Title VII of the Civil Rights Act. It is the most comprehensive federal statute regulating employment discrimination.
■ Purpose: protect employees and job applicants from discrimination. Title VII of the Civil Rights
Act identifies five protected classes:
* Race
* Color
* Religion
* Sex (including pregnancy)
* National origin
■ Coverage
* Companies affecting interstate commerce; labor unions; employment agencies; federal,
state and local governments; and educational institutions. Excludes private membership
clubs (they are covered under 42 USC 1981).
* Companies employing 15 or more individuals, 20 weeks per year
■ Provisions
* Two types of unlawful treatment
– Disparate treatment
– Disparate impact
* Remedies
– Back pay
– Reinstatement
– Attorney and witness fees
■ Enforcing agency: EEOC
What are the procedures to file a case under Title VII of the Civil Rights Act of 1964?
■ Who can file - Employee’s legal counsel or EEOC
■ Timeline for filing - Charge must be filed in 180 days if there is a corresponding state law, otherwise 300 days
* For compensation case, clock starts over each time employee receives discriminatory compensation (Lilly Ledbetter Fair Pay Act)
■ Who investigates and mediates - EEO specialist
■ Who litigates - EEOC litigates or issues permission to sue letter after 180 days
What is Disparate Treatment?
2, Statistical evidence: This is evidence that all members of a protected group are paid less than nonmembers. This method may only be used where the employee population being studied is sufficient in numbers for statistical validity. Discriminatory intent may be proven If all members of a protected group are paid less than nonmembers. If multiple regression analysis is used to eliminate the affect on pay of defensible job related factors, then a strong predictive validity of membership in a protected class may be utilized. Large class action cases often rely on this methodology.
Disparate Treatment
Title VII prohibits employers from paying one employee less than another because of that employee’s membership in a protected class.
An employee must prove two facts to establish disparate treatment in violation of Title VII:
■ He or she is paid less than employees who are not members of the same protected group.
■ The employer intentionally maintains this pay disparity because the employee is a member of a protected class. Intent may be proven in three ways.
#1. Direct evidence: Generally this would be only a statement by the employer that it took the action because of the employee’s protected class (“I’m paying you less because you’re a woman”).
What is Disparate Impact?
Disparate Impact
Title VII prohibits employers from maintaining employment practices or procedures which impose greater limits on the employment opportunities of members of a protected class than on nonmembers of a protected class, unless these practices are justified by business necessity. An employment practice is a business necessity when it is both reasonably related to the job which the affected employees are performing and no policy with lesser impact on a protected group is available.
What is Griggs v. Duke Power Co. (1971)?
Duke Power implemented new requirements for a high school diploma or passing of intelligence tests as a condition of employment in, or transfer to, jobs at the plant. This requirement had an adverse impact on black applicants and employees who were statistically less likely to have graduated from high school, or to pass the tests.
Prior to the implementation of the new requirements, employees who did not have a high school diploma and who were unable to pass the intelligence tests successfully performed the jobs. The requirements for employment / promotion were found to be illegal under Title VII because they were not related to job performance.
“The act requires the elimination of artificial, arbitrary and unnecessary barriers to
employment…(that) cannot be shown to be related to job performance… notwithstanding the employer’s lack of discriminatory intent.” US Supreme Court (Chief Justice Burger)
What are Defenses Under Title VII?
Defenses Under Title VII
Defenses under Title VII are similar to the defenses of the Equal Pay Act.
■ Bona fide occupational qualification (BFOQ): An employer may refuse to hire an individual because of his or her religion, sex or national origin only where that limitation is reasonably necessary to the normal operation of the employer’s business.
* Race can never be a BFOQ
* Job specifications must be related to the job and job performance
* Affects tests, hiring and promotion criteria including performance appraisal criteria
■ Business necessity: essential for the safety and efficiency of the business and no reasonable alternative with lesser impact exists
■ Seniority system: defense is limited to situations where system does not contain discriminatory treatment per Civil Rights Act of 1991.
■ Merit system
■ Quality or quantity of production measurement system
■ Different locations
■ Market wage rates: job related differences in market pay rates can be a defense under Title VII when the jobs compared are not substantially similar jobs.
