Three Decades of Experience with the Equal Pay Act

• DOI: 10.1177/0734371X9301300404
• Published date: 01 October 1993
• Date: 01 October 1993
• Subject Matter: Articles

Three Decades of
Experience with
the Equal Pay Act
PAUL S. GREENLAW
AND ROBERT D. LEE, JR.
Equal Pay Act (EPA) of 1963 banned employers from
he
N ’
paying men or women more money simply because of
t
their gender. This was the first major piece of American
T legislation intended to combat employment discrimina-
’――――――~
tion. President John F. Kennedy signed the bill into law
on
June 10, 1963. After thirty years of experience with the EPA, some
stock-taking is in order as to the utility of the law, which has been
important in the field of employment discrimination in the public
sector.
This article, which analyzes case law, begins with a discussion of
The Equal Pay Act of 1963
the purposes and scope of the EPA and
deserves some stock-taking after
then proceeds to consider what claim-
having been in operation for thirty
ants must prove in court to demonstrate
years. The law, which requires
that public employers have violated the
equal pay for equal work among
law. Next, the analysis turns to what
men
and
women,
provides a
are known
as the affirmative defenses
mechanism
for aggrieved workers
that employers, both public and private,
to present prima facie cases of
may raise to rebut EPA claims. Finally,
discrimination before courts after
the related issues of back pay awards,
which accused employers have an
willful employer discrimination,
opportunity to provide affirma-
liquidated damages, and the EPA
tive defenses, showing that no
statute of limitations are considered.
discrimination exists. This article
The discussion necessarily covers some
ecamines how
courts have
private sector court decisions, since the
interpreted the Equal Pay Act and
law applies to most employers.
discusses the current status of the
law, including areas that remain
Purposes and scope of the EPA
unsettled and need the attention
Rather than being a separate law, the
of the Supreme Court.
EPA
was appended to the minimum
43

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wage provisions of the Fair Labor Standards Act (FLSA) of 1938
because industry expressed fears that otherwise a new and unfamiliar
bureaucracy might emerge (Peters v. City of Shreveport, 1978). The EPA,
which was a charter for women’s rights, was designed to remedy what
was &dquo;perceived to be a serious and endemic problem of employment
discrimination in industry&dquo; (Corning Glass Works v. Brennan, 1974: 195).
Many segments of industry had been based on &dquo;an ancient but out-
moded belief that a man, because of his role in society, should be paid
more than a woman
even though his duties are the same&dquo; (S. Rept.,
No. 176, 1963). To overcome this problem, the EPA simply required
that equal wages be paid for equal work irrespective of sex. In spite of
this emphasis upon &dquo;equality,&dquo; virtually all plaintiffs have been
women.
With respect to its scope, the EPA was never intended as a
comprehensive attack on sex discrimination in employment. &dquo;It was
regarded as a limited first step aimed at a particularly blatant and
egregious form of sex discrimination-paying women lower wages
than men for performing the same work&dquo; (Berry v. Board of Supervisors
of L. S. U., 1983: 977). Not until a year later, with the passage of the
Civil Rights Act of 1964, were all forms of sex discrimination on the job
rendered illegal.
The EPA was not applicable to state and local governments as it
was
originally written in 1963. In 1966, however, the law’s coverage
was
extended to employees of state and local hospitals, public transit,
and certain institutions. This extension was upheld by the Supreme
Court in Maryland v. Wirtz (1968). The extension of the Fair Labor
Standards Act to the states was completed by the Fair Labor Standards
Amendments of 1974. In these amendments, the critical definition of
&dquo;enterprises engaged in commerce or in the production of commerce&dquo;
was expanded to encompass &dquo;an activity of a public agency,&dquo; and
employer was redefined to include a public agency. Thus, the FLSA
was
amended to impose &dquo;substantially identical requirements upon
public employers as on private employers&dquo; (Marshall v. Owensboro-
Daviess County Hospital, 1978:118).
The question of whether the extension of the EPA to states and
their political subdivisions was a valid exercise of congressional power,
however, remained open for discussion in the courts. This issue was
resolved in 1985 by the Supreme Court in Garcia v. San Antonio Metro-
politan Transit Authority. The case firmly established that the federal
government had considerable powers in regulating employment in
state and local governments. The Court specifically held that the
extension of the Fair Labor Standards Act to the states was authorized
under the Commerce Clause and that the law did not destroy state
sovereignty.
44

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The prima facie case
Claimants under the EPA must show a prima facie case of sex-based
pay discrimination by a preponderance of the evidence, after which the
burden of proof shifts to employers, who may rebut claiming that any
differences in work and pay among men and women are legitimate as
provided under the law. Claimants must assert the following in their
prima facie cases: (1) their employers are subject to the law, (2) they,
themselves, as employees are covered by the law, (3) the disparity is
within what the law considers an establishment, (4) equal pay has not
been provided to men and women, (5) the work is equal in regard to
skill, effort and responsibility, and similar with respect to working
conditions, and (6) the comparators are appropriate.
1. Employer. In filing cases, employees must show that their
employers are covered under the Equal Pay Act. While the San
Antonio decision clearly established state and local government cover-
age under the Fair Labor Standards Act, some ambiguity remains as to
employers that are neither state entities nor local political subdivisions,
namely unincorporated public entities which are neither fish nor foul.
One such area of ambiguity involves intermediate school districts
in Pennsylvania, in which school districts work together to provide
special education services, such as vocational training and education
for mentally and physically handicapped children. These units, while
created by the state, are not state agencies nor are they local govern-
ments in the sense of having authority to raise revenue on their own
with taxing power.
The issue of coverage of intermediate units was addressed in a
1988 circuit court case, Arnold v. BLaST Intermediate Unit 117. The court
held that the BLaST unit was indeed an employer in that women
teacher’s aides had shown that they were paid by BLaST and that the
unit exhibited characteristics of being a local government, namely that
it received state financial assistance as did school districts and that it
was
a local agency under state law in cases of tort. The court noted
that Congress in passing the Equal Pay Act had intended to abolish
immunity when governmental units acted as employers.
2. Employee. EPA plaintiffs must also prove that they are
&dquo;employees&dquo; under the act. Two somewhat different EPA cases have
been decided on this issue, both in the field of corrections. In the first,
an inmate in the federal penitentiary in Leavenworth, Kansas alleged
Equal Pay Act discrimination among other things, in connection with
prison job assignments; he worked as a prison library clerk and was
later reassigned as a laborer. The court, as might be expected, ruled
that the inmate was not an &dquo;employee&dquo; of the Federal Bureau of
Prisons in that the work performed was incidental to his having been
incarcerated. The prisoner also lost under the Equal Pay Act because
he made no contention of having been discriminated against based
45

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upon his being a man (Williams v. Meese,1991).
Another case, Brewster v. Barnes (1986), illustrates what have been
exceptions to the law in coverage of some employees. Joyce Brewster
was
hired by county sheriff George Bames, an elected official, and
advanced from being his secretary to being a correctional officer and
deputy sheriff. What was at issue was that the law excludes employ-
ees who: (1) are not subject to the relevant civil service laws, (2) hold a
public elective office, or (3) are selected by the holder of an office to be
a member
of his/her personal staff.
In this case, the key issue was whether Brewster’s job as a deputy
sheriff was tantamount to being on the sheriffs personal staff. The
court ruled that she did not occupy a high level position in the sheriff’s
department nor make policy decisions. &dquo;Rather, she performed the
same
functions as the other correctional officers in the jail,&dquo; and
therefore was an employee as defined by the EPA (Brewster, 1986: 991).
Since the Brewster decision, Congress passed the Government
Employees Rights Act of 1991, which extends coverage against dis-
crimination to many employees previously excluded. The law covers
employees of the U.S. Senate, presidential appointees, and state and
local employees appointed by an elected officer. Employees specifi-
cally included are those who are considered personal staff, who serve
elected officers at the policymaking level, and who serve as immediate
advisors to elected officers. The law protects against sex discrimina-
tion and discrimination based on race, color, religion, national origin,
and disability. The law extends coverage under the Civil Rights Act of
1964, the Age Discrimination in Employment Act of...