“Wage Discrimination” – What is it and how do I prove it?

Posted on January 10, 2023

A conceptual piece representing wage discrimination, featuring members of different genders and age groups standing on differing amounts of money.

Wage discrimination is when an employer pays unequal compensation to workers for substantially the same work because they belong to a protected class. It is prohibited by several different federal laws. However, which law applies can alter how you can invoke your rights to equal pay and how your case will proceed. Most states also have laws forbidding wage discrimination.

What are some examples of wage discrimination in the workplace?

A few examples of wage discrimination in the workplace are:

a female employee getting paid a lower salary than her male counterparts,
an older man having to contribute more for retirement than his younger coworkers,
Black women and other women of color not getting offered the same employment benefits as coworkers of other races,
white women receiving higher wages per hour for the same job that Hispanic and African-American women are working, and
a male employee receiving less sick time from his employer than female workers.

In each of these examples, a worker is receiving less compensation because of a discriminatory reason, even though they are performing the same job.

Note that wage discrimination does not just apply to the gender pay gap. It applies to all differential pay schemes that are based on discriminatory factors.

What laws forbid pay discrimination?

Several federal laws forbid pay discrimination in different circumstances. Additionally, nearly all states have anti-discrimination laws that forbid pay discrimination.

The most important federal laws that cover wage discrimination are the:

Equal Pay Act of 1963 (EPA),
Title VII of the Civil Rights Act of 1964 (Title VII),
Americans with Disabilities Act (ADA), and
Age Discrimination in Employment Act (ADEA).

However, not all employers are subject to these laws. Small employers with few employees may only fall under the EPA.

The Equal Pay Act

The Equal Pay Act was the first federal law to target wage discrimination. It amended the federal Fair Labor Standards Act (FLSA) to forbid pay discrimination on the basis of sex. Under the EPA, employers are not allowed to pay one sex lower wages for equal work in jobs that involve the same:

skills,
effort,
responsibilities, and
working conditions.¹

Employers violate the EPA’s mandate unless the difference in pay is based on:

seniority,
merit,
a system that measures earnings by quality or quantity, or
some factor other than sex.^²

The EPA applies to any employer that has 2 or more employees.^³

Title VII of the Civil Rights Act

Title VII is the leading federal anti-discrimination law that applies to the workplace. It forbids workplace discrimination that is based on:

race,
color,
religion,
sex,
pregnancy, and
national origin.⁴

This includes discrimination that takes the form of different wages or wage structures.⁵

Title VII applies to employers that have 15 or more employees.⁶

The Americans with Disabilities Act

The Americans with Disabilities Act prohibits workplace discrimination against qualified workers on the basis of their disability.⁷ This includes wage discrimination, where a disabled person is not paid the same as a non-disabled person because of their disability.

The ADA also only covers employers that have 15 or more employees.⁸

Age Discrimination in Employment Act

The Age Discrimination in Employment Act also prohibits workplace discrimination. As the name implies, the ADEA focuses on age discrimination. Among other discriminatory practices, the ADEA forbids employers from paying workers differently based on their age.⁹

The ADEA only applies to employers that have 20 or more employees.¹⁰

How can I prove that my employer is committing pay discrimination?

The process for proving pay discrimination depends on the law you invoke. The elements of unlawful pay disparity may be different under the EPA than they are under other federal employment laws, like Title VII.

Most importantly, while the EPA requires proof of unequal pay for equal work, Title VII does not.¹¹ Meanwhile, Title VII claims require evidence of a disparate impact or a discriminatory animus or intent, while unequal pay claims under the EPA do not.¹² Additionally, Title VII claims do not require comparing your wages to someone similar who is not in your protected class.¹³

Equal Pay Act

Wage discrimination claims under the EPA first have to prove a prima facie case. Your employer then has the opportunity to rebut the claim with a valid defense.

To make a prima facie case of wage discrimination under the EPA, you have to show 4 elements:

you were paid unequally,
the discrepancy was on the basis of sex,
you performed substantially equal work, and
others in the same establishment were paid better.¹⁴

The comparison between your wages and what others received is limited to the same establishment. While a single employer can have more than one establishment, if the working conditions in different buildings are the same and decisions are made by the same personnel, this element is likely to be satisfied.¹⁵

You also have to show that you performed substantially equal work to someone who is being paid more. The work does not have to be identical, though a significant portion of the job should be the same.¹⁶ According to the EPA statute, the jobs need to be performed under similar working conditions and require equal:

skill,
effort, and
responsibility.¹⁷

If you can prove a prima facie case for wage discrimination, your employer has the opportunity to rebut your claim. They can do this by showing that the wage discrepancy was permissible under one of the EPA’s 4 exceptions, which allow different pay if it is based on:

seniority,
a merit system,
a system that measures productivity, or
another factor that is not based on sex.¹⁸

Other federal anti-discrimination laws

Proving wage discrimination under Title VII is different than it is under the EPA. Other federal laws, like the ADA and the ADEA, broadly follow the procedures of Title VII.¹⁹ Unfortunately, different jurisdictions disagree over what that entails.

Generally, though, in order to prove that you were the victim of wage discrimination under Title VII, you have to prove that there was either:

a facially neutral pay structure that caused a disparate impact, or
intentional wage discrimination.²⁰

However, the U.S. Supreme Court has not affirmed that disparate impact can support a wage discrimination claim under Title VII.²¹ Many Circuit Courts have done so, though.²²

Generally speaking, you have to make a prima facie case of wage discrimination. This involves showing that:

you are in a protected class under Title VII or another federal anti-discrimination law,
you satisfactorily performed your job duties,
you received unequal compensation for your work, and
that disparate pay was because you were a part of a protected class.²³

If you can make a prima facie case, it creates the presumption of discrimination. Your employer then has to show that there was a legitimate and non-discriminatory justification for the disparate pay. If you employer can provide one, you then have the opportunity to rebut its claim by showing that it is just a pretext for unequal pay.^²⁴

What types of pay have to be equal?

Workplace anti-discrimination laws forbid all sorts of compensation discrimination. This includes:

hourly pay rates,
salaries,
retirement and life insurance benefits,
terms of employer-provided healthcare,
reimbursement policies,
vacation pay, sick leave, and other paid time off (PTO) offerings,
bonuses,
overtime pay,
stock options, and
travel expenses and accommodations.

What are the protected classes for pay discrimination?

Each federal anti-discrimination law has its own group of protected classes.

A protected class is a group of people who share a common characteristic that is protected by law. These characteristics are traits that either cannot be changed or would be unfair to make someone change. Targeting someone because of a protected trait amounts to discrimination.

The EPA’s protected class is sex. Wage discrimination on the basis of sex violates the EPA. “On the basis of sex” includes discriminatory conduct that targets someone based on their:

sex,
gender,
gender identity,
gender expression,
sexual orientation, or
pregnancy.

The ADA’s protected class is disability. Employers that commit wage discrimination based on a worker’s disability violate the ADA, though not necessarily the EPA. The ADA covers both:

mental disabilities, and
physical disabilities.

The ADEA’s protected class is age. Wage discrimination that targets a worker because he or she is over the age of 40 violates the ADEA. However, it might not violate either the ADA or the EPA because age is not a protected class under either of those laws.

Title VII has numerous protected classes. These prohibit wage discrimination that targets a variety of traits, including:

race,
religion,
national origin, and
sex.

Many wage discrimination claims under Title VII are also pursued under a different law as well.

What does it mean for a job to require “substantially the same work”?

Wage discrimination claims under the EPA require proof that you were paid unequally for equal work.²⁵ However, the work only has to be “substantially equal,” not “identical.”^²⁶ Small differences between your job and someone else’s do not doom an EPA claim. However, the jobs must require equal:

skill,
effort, and
responsibility.^²⁷

According to regulations from the U.S. Department of Labor (DOL), the similarities must be present in the actual practice of the job, not in the job title or description.²⁸

Jobs often require substantially the same skills if workers must have the same:

education,
training,
experience, and
abilities.²⁹

Jobs can require different effort levels if they require:

more time to complete, and
are more valuable to the employer.³⁰

Jobs can have substantially similar responsibilities if they have comparable:

supervisory duties over other workers,
levels of oversight by supervisors, and
abilities to make decisions in the workplace.³¹

If you are being paid less than someone else who works a substantially similar job, it can be used to support an EPA claim. Comparing your pay to someone else’s who works a similar job to yours is not necessary under Title VII or other workplace discrimination laws, though.

Do any state laws forbid wage discrimination?

Yes, nearly every state has anti-discrimination laws that forbid wage discrimination. In many cases, these state laws provide more legal protections for workers than their federal counterparts. This is done to ensure pay equity throughout the labor market.

For example, California has the California Equal Pay Act (CEPA).³² This state equal pay law forbids paying workers who perform substantially similar work different compensation because of their:

sex,
race, or
ethnicity.^³³

The only lawful reasons for differences in pay are a worker’s:

education,
training,
experience,
merit,
seniority, or
quality of production.^³⁴

If your employer violates the CEPA, you can recover:

reinstatement to your old job if you were wrongfully terminated, and
twice your back wages.^³⁵

What can I do if my employer is committing wage discrimination?

If you think that your employer is committing pay discrimination, you have legal options. You can:

file a discrimination claim under Title VII, the ADEA, or the ADA, or
file a lawsuit under the EPA.

Claims under Title VII, the ADA, and the ADEA must exhaust all administrative remedies before they can be filed in court. This means you have to file a claim with the U.S. Equal Employment Opportunity Commission (EEOC) first. Only if the EEOC cannot resolve your claim can you file a discrimination lawsuit in court.

EPA claims do not have to go through the EEOC first. You can file these lawsuits in court right away.

How long do I have to file a wage discrimination claim?

The statute of limitations for filing a claim of wage discrimination depends on which law you are invoking.

If you are filing a lawsuit under the EPA, you have either:

2 years from the last discriminatory paycheck to file the claim, or
if the discrimination was willful, 3 years.³⁶

Wage discrimination claims filed under other federal laws must be made within 180 days of the issuance of the last discriminatory paycheck. This applies to pay discrimination claims brought to the EEOC under:

Title VII,
the ADA, and
the ADEA.

This is a new change in the law. It comes from the Lilly Ledbetter Fair Pay Act of 2009.³⁷ This law amended these workplace discrimination laws.³⁸ The Supreme Court of the United States had interpreted Title VII’s statute of limitations to require a claim to be filed within 180 days of the initial decision to discriminate.³⁹ The Lilly Ledbetter Fair Pay Act superseded this court decision to give aggrieved workers more time to invoke their rights.

Legal References:

29 USC 206(d)(1).
Same.
Same.
42 USC 2000e-2(a)(1).
See Bazemore v. Friday, 106 S.Ct. 3000 (1986) (race-based compensation system).
42 USC 2000e(b).
42 USC 12112(a).
42 USC 12111(5).
29 USC 623(a)(1).
29 USC 630(b).
Washington County v. Gunther, 101 S.Ct. 2242 (1981).
See Aldrich v. Randolph Central School District, 963 F.2d 520 (2d Cir. 1992).
Washington County v. Gunther, supra note 11.
See Corning Glass Works v. Brennan, 94 S.Ct. 2223 (1974).
Brennan v. Goose Creek Consolidated Independent School District, 519 F.2d 53 (5th Cir. 1975).
Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970).
29 USC 206(d)(1).
Same.
See, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1998) (ADA) and La Montagne v. American Convenience Prod., Inc., 750 F.2d 1405 (7th Cir. 1984).
See Aldrich v. Randolph Central School District, supra note 12.
Nashville Gas Co. v. Satty, 98 S.Ct. 347, 352 (1977).
See, e.g., Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982), Liberles v. County of Cook, 709 F.2d 1122 (7th Cir. 1983), and EEOC v. Ball Corp., 661 F.2d 531 (6th Cir. 1981).
See Lenzi v. Systemax, Inc., 944 F.3d 97 (2d Cir. 2019).
Same.
29 USC 206(d)(1).
Shultz v. Wheaton Glass Co., supra note 16.
29 USC 206(d)(1).
29 CFR 1620.13(e).
Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409 (9th Cir. 1988).
Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970).
See 29 CFR 1620.17.
California Labor Code 1197.5 LAB.
Same.
Same.
Same.
29 USC 255.
Pub. L. 111-2.
42 USC 2000e-5(e)(3)(A) (Title VII and the ADA) and 29 USC 626(d) (ADEA).
Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007).

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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