Equal Pay Act

• Author: George Rutherglen
• Pages: 130

The Equal Pay Act contains provisions that are distinctive both as a matter of substantive law and as a matter of procedure. Substantively, the Act requires employers to give equal pay to men and women "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex."[689] Much of the substantive law under the Equal Pay Act, like that under Title VII, is devoted to allocating the burden of proof. The plaintiff has the burden of proving that the work performed by members of both sexes is "substantially equal" according to the four factors listed in the statute:

equal skill, effort, and responsibility, and similar working conditions.[690] If the plaintiff carries the burdens of production and persuasion on these issues, then both burdens shift to the defendant to prove that one of the four exceptions justifies the difference in pay.[691]

A leading case, Coming Glass Works v. Brennan,[692] illustrates how the burden of proof operates under the Equal Pay Act. That case concerned a claim of unequal pay asserted by women who worked in the same position as men, as product inspectors, but during the day shift instead of the night shift. The men were paid more ostensibly because they worked at night, but the record also indicated that the original difference in pay, established in the 1920s, was based partly on the fact that only women worked during the day and only men worked at night. The Supreme Court held that time of work was not a matter of "similar working conditions," because Congress intended to define such conditions according to technical standards, which included only the surroundings and hazards of employment. Since these standards excluded time of work, the plaintiff could establish that women performed the same work as men even though they worked on different shifts. The burden of proving that the difference in shifts justified the difference in pay was then placed on the defendant, who had to prove that the difference in pay fell within the catchall exception for "any other factor other than sex." Because of the evidence that the shift differential was related to sex, the defendant lost on this issue and was held to...