Wage Discrimination

 

What is wage discrimination?

 

Wage discrimination occurs when an employer pays a woman less than a man for substantially equal work.1 Such compensation includes salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.2 Wage discrimination may also occur in instances that do not meet the equal work standard. Such instances include those in which a woman holds a unique position with her employer that cannot be compared to another employee; and where a woman may be receiving wages equal to a comparable male but would be receiving more but for sexual discrimination. 3

 

How do I find out if I am being paid less?

 

You can either try to talk to co-workers you trust or use the salary calculator provided to determine the average wages in your area by job title: http://wageproject.salary.com/

 

What are federal laws protect me against wage discrimination?

 

Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963 (EPA) both make wage discrimination illegal.

 

What is the EPA?

 

The EPA requires virtually all employers (regardless of the number of employees) to pay men and women equal wages for equal work. 4

 

What counts as “equal work”?

 

Equal work does not require the same job title, only that the jobs are roughly equivalent in light of the following five factors:

  1. Skill – The requirements of the position, such as experience, training, education and ability. Skills possessed by an employee that are not used on the job are not considered when comparing two employees (e.g., a degree in Art History does not make one employee more skilled as a secretary). 5
  2. Effort – The mental and physical exertion required to perform the job and the mental and physical stress caused by the job. 6
  3. Responsibility – What the employee is accountable for and how important the work is. 7
  4. Working conditions – The physical working conditions and any possible hazards. This factor has been interpreted to only mean differences in working conditions that are typically taken into account when setting wages or collective bargaining agreements.8
  5. Establishment – This typically refers to a single place of business, but under certain conditions can include multiple locations that are geographically removed. 9
If you and the male counter-part(s) you are comparing yourself to differ in any of the areas listed above, you will be unable to prove equal work, and your wage discrimination claim under the EPA will be dismissed.

 

 

Are there any exceptions that allow my employer to pay different wages?

Under the EPA, employers are allowed to pay employees differently so long as the differences are based on seniority, merit, quantity or quality of work produced, or any other difference other than gender.10

Do I need to prove my employer intentionally or willfully discriminated against me?

 

You are not required to prove discriminatory intent under the EPA.11 If you can show that you are being paid less than a male co-worker for equal work, and your employer cannot show that the wage discrepancy is the result of one of the five exceptions listed above, your employer will be found liable for wage discrimination. 12

 

How do I bring an EPA claim?

 

To initiate a claim against your employer for wage discrimination you can file a claim with the Equal Employment Opportunity Commission (EEOC) or opt to file your claim directly in state or federal court. 13

Under the EPA, you are not required to go through the EEOC prior to filing a lawsuit. Keep in mind, however, that it may be in your best interest to file your EPA claim with the EEOC because it will likely overlap with a related Title VII claim, which you are required to file with the agency prior to filing suit.

 

How long do I have to file my claim under the EPA?

 

You have two years to file your wage discrimination claim, regardless of whether you file with the EEOC or in court. If your employer acted willfully (i.e., if your employer either knew he was engaging in wage discrimination or showed reckless disregard for the matter of whether his conduct was unlawful under the statute), you have three years to pursue your claim. 14

 

When filing a claim under the EPA, does it matter when the discrimination occurred?

 

The Lilly Ledbetter Fair Pay Act of 2009, states that each paycheck that delivers discriminatory compensation is a new violation of federal law, regardless of when the discrimination began.15 That is, the 300-day period starts over with every unequal paycheck.

 

What can I recover under the EPA?

 

If your employer is found to have violated the EPA, you can recover lost wages for up to two years before the suit was filed, and three years if the violation was found to be willful. The court may also order the employer to pay double the lost wages. 16

 

What can my employer do if I bring a claim?

 

It is illegal for your employer to fire or otherwise punish an employee for bringing a claim under the EPA or for their participation in a wage discrimination case.17 If your employer is found to have violated the EPA, he cannot lower the wages of the higher paid employee in order to comply. 18

 

What is Title VII?

 

Title VII makes it illegal for employers to discriminate on the basis of sex, including in the payment of wages and benefits.19 Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.20 Although most federal employers are covered, employees of the Library of Congress, the General Accounting Office, and uniformed members of the military are not protected by Title VII.21 Other exemptions include: private membership clubs which have received tax exempt status,22 Indian tribes,23 and public international organizations such as the International Monetary Fund and the World Bank. 24

 

Do I need to prove equal work under Title VII?

 

The equal work standard is not required for claims brought under Title VII, although similar evidence may be necessary in order to win your case.

 

How do I bring a claim?

 

If you are not a current or former state or county employee, there is no state administrative agency that handles private employment discrimination claims, and you must file your complaint with the EEOC.

If you are a current or former state or county employee, you may file your complaint with the Civil Rights Division (CRD) of the Office of Administrative Hearings (OAH), which has been designated the deferral agency for such claims, or directly with the EEOC.25

See below for how to file with the CRD.

 

How long do I have to file my claim under Title VII?

 

If you are a current or former state or county employee, you must file your claim with the EEOC within 300 days of the alleged wage discrimination.26 If you are not a current or former state or county employee, you must file your claim with the EEOC within 180 days of the alleged wage discrimination.27

Remember that you must file your Title VII claim with the EEOC before you can pursue your claim in federal court. 28

 

When filing a claim under Title VII, does it matter when the discrimination occurred?

 

The Lilly Ledbetter Fair Pay Act of 2009 states that each paycheck that delivers discriminatory compensation is a new violation of federal law, regardless of when the discrimination began.29 That is, the 300-day period starts over with every unequal paycheck.

 

What can I recover under Title VII?

 

If the court finds that your employer has violated Title VII, there are several available remedies. The court has the freedom to demand that your employer take appropriate action, such as ceasing the discriminatory practice, hiring or promoting you, or paying you lost wages as far back as two years prior to your complaint with the EEOC. 30

However, if your employer can show that there was a non-discriminatory reason for its action as well as the discriminatory reason you proved, and that it would have taken the same action anyway, your remedies will be severely limited. The court is limited to telling your employer to stop the discriminatory practices, declaring that the practices are discriminatory, and paying attorney fees. 31

On the other hand, if you can show that your employer discriminated maliciously or recklessly, then the court may award extra payments beyond lost wages.32 These payments are limited by the size of your employer.33

 

What can my employer do if I bring a claim under Title VII?

 

It is illegal for an employer to retaliate against you because you complain, file a claim, or otherwise participate in a wage discrimination dispute. 34

 

What are the North Carolina laws regarding wage discrimination?

 

The applicable state wage discrimination law is the North Carolina Equal Employment Practices Act (NCEEPA), which states that "it is the public policy of the state is to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, sex or handicap by employers which regularly employ 15 or more employees." 35

North Carolina courts, however, have generally held that the NCEEPA does not authorize a private cause of action and is merely a public policy statement.36 Furthermore, the NCEEPA does not provide any remedies for violations.37 A North Carolina federal district court has gone so far as to hold that federal courts should dismiss claims brought under the NCEEPA until the North Carolina courts and/or legislature define a cause of action. 38

 

Can I bring a wage discrimination claim under North Carolina law?

 

Given the information above, it may be best to pursue your claim under federal law with the CRD, if you are a state or county government employee, or with the EEOC if you do not fall within that classification.
See below for how to file with each agency.

 

How do I bring a claim for wage discrimination?

 

If you are a current or former state or county employee, you may file your complaint with the CRD, which is a deferral agency charged with handling employment discrimination claims, or directly with the EEOC.39 Note that you may file your claim with the CRD without exhausting in-house or agency grievance procedures.40

To be eligible to file with the CRD, you must be a current or former state or county employee that is or was subject to the provisions of the State Personnel Act, Chapter 126 of the North Carolina General Statutes.41 The following employees are also eligible: non-exempt State Government employees; non-exempt UNC employees; and County Social Services, Mental Health, Public Health and Civil Preparedness employees.42

If you are not a current or former state or county employee, there is no state administrative agency that handles employment discrimination claims, and you must file a complaint directly with the EEOC.43

See next question for how to file with the CRD. If you would like to file directly with the EEOC, see The EEOC Process for more information.

 

How do I file a claim with the CRD?

 

To file a claim, also known as a "charge," you must contact the CRD by mail, telephone or in person at:
1711 New Hope Church Road
Raleigh, NC 27609
(919) 431-3036.

When filing a charge be sure to include the following information:

  1. Your name, address and telephone number;
  2. The name, address and telephone number of your employer;
  3. A brief description of the alleged wage discrimination;
  4. The date(s) of the alleged violation(s);
  5. Comparative information; and
  6. The names and contact information of witnesses to the alleged incident(s). 44
Note that until the CRD receives a signed official charge form, the CRD will not consider it as having been filed.

 

 

How long do I have to bring a claim with the CRD?

 

You must file your charge with the CRD within 180 days from the date of the wage discrimination. If the CRD receives your charge on the 181st day, it will be transferred to the EEOC for further processing. 46

 

What remedies are available to me?

 

If the CRD finds that the evidence you provided does not establish wage discrimination, the Director of the CRD will issue a notice of determination to you and your employer explaining this finding.47 This notice closes the case with the CRD and will allow you 90 days, after receiving the notice of a “right to sue” from the EEOC, to file a lawsuit in state or federal court on your own behalf.48

If the CRD finds that the evidence establishes wage discrimination, the Director of the CRD will issue a notice of determination to you and your employer explaining this finding. The CRD will then attempt conciliation to arrive at a remedy for the discrimination you suffered. If you and your employer reach an agreement about the remedy you will be prohibited from going to court at a later date, unless your employer fails to honor the agreement.49

If the CRD is unable to reach an agreement with your employer about the remedy, the CRD will forward your case to the Charlotte District Office of the EEOC for review and further processing.50 The EEOC may reach out to your employer and try to reach an agreement again.51 If the EEOC is unable to successfully conciliate the case, it may decide to sue your employer in Federal Court on your behalf.52 If the EEOC decides not to sue on your behalf, however, it will issue a notice closing the case and giving you a notice of a "right to sue" which provides 90 days in which to file a lawsuit on your own behalf.53 In Title VII and ADA cases against State and Local governments, the notice of a "right to sue" is issued from the Department of Justice. 54
Wage Discrimination: “It Happened to Me” 55

Della McDougal-Wilson (Wilson) began working for Goodyear Tire and Rubber Company (Goodyear) in 1984 and remained with the company until she was terminated in August of 2002. During her time with the company she worked as a sales associate, retail sales manager, store sales manager, and service manager at the Goodyear Auto Service Center at Crabtree Valley Mall. In 1996, Wilson was promoted to store manager and transferred to the Jones Franklin Road store, where she reported to a district manager. The Jones Franklin store was audited three times while Wilson was store manager and she received a satisfactory score for each audit. Nevertheless, she was cited multiple times for her poor organizational and managerial skills with respect to managing personnel and paying vendor bills. Wilson was terminated in August of 2002, at which time she filed a charge with the Equal Employment Opportunity Commission against her former employer for sex-based wage discrimination, alleging that she had been paid less than new, white, male store managers. In particular she argued that “Goodyear paid Burks and Marion $4,077, compared to Wilson's $3,487; Hudgins $4,500, compared to Wilson's $3,656; and Maybee, $4,547, compared to Wilson's $3,948.” These figures compared her salary to that of each new white male store manager around the time he was hired.

Despite evidence that she was being paid less than white male store managers, the Court found that Wilson failed to establish the elements for sex-based wage discrimination because she failed to show that she was being paid less than similarly situated employees outside her protected class. That is, she did not show that she was being receiving unequal pay for equal work. The evidence showed that Wilson’s store was never classified as greater than a $650,000-$899,999 volume store, while the stores managed by Burks, Marion, Hudgins and Maybee were each classified as $1.2 million volume stores. As managers of higher volume stores, their duties required more in terms of paperwork, processes, budgeting skills, and overall responsibilities and therefore, Wilson was not similarly situated to them. Furthermore, the Court found that even if Wilson had been able to establish the elements for sex-based wage discrimination, the evidence showed that Goodyear paid store managers according to a tiered system based on store volume and therefore the wage differences Wilson alleged fell within two defenses: 1) a compensation system that measures earnings based on quantity or quality of production and 2) some factor other than sex.” As a result, the Court dismissed Wilson’s sex-based wage discrimination claim against Goodyear.

 

 

1 29 U.S.C.A. §206(d)(1) (2009).
2 EEOC, http://eeoc.gov/laws/types/equalcompensation.cfm (last visited Mar. 2, 2010).
3 Am. Jur. 2d Job Discrimination, supra note 634, at § 655.
4 29 U.S.C.A. §206(d)(1) (2009).
5 7 A.L.R. Fed. 707 (2009).
6 Id.
7 Id.
8 Id.
9 124 A.L.R. Fed. 159 (2009).
10 29 U.S.C.A. § 206(d)(1) (2009).
11 Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir.1992).
12 29 U.S.C.A. § 206(d)(1) (2009).
13 Id. at § 206(b).
14 29 C.F.R. § 1614.408 (2009).
15 Lilly Ledbetter Pay Act of 2009, 42 U.S.C.A. § 2000e-5(e)(3)(A) (West 2009).
16 29 C.F.R. § 1614.408 (2009).
17 29 U.S.C.A. § 215(a)(3) (2009).
18 Id. at § 206(d)(1).
19 Id. at § 2000e-2(a)(1).
20 Id. at § 2000e(b).
21 29 C.F.R. §1614.103 (2009).
22 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (last visited Mar. 1, 2010).
23 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (last visited Mar. 1, 2010).
24 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (last visited Mar. 1, 2010).
25 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/ (last visited Mar. 3, 2010).
26 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Mar. 3, 2010)..
27 Id.
28 Id.
29 Lilly Ledbetter Pay Act of 2009, 42 U.S.C.A. § 2000e-5(e)(3)(A) (West 2009).
30 42 U.S.C.A. § 2000e-5(g)(1) (2009).
31 Id. at § 2000e-5(g)(2)(B)(i)-(ii).
32 Id. at § 1981a-(b)(1).
33 Id. at § 1981a-(b)(3).
34 Id. at § 2000e-3(a).
35 N.C. Gen. Stat. Ann. § 143-422.2 (2009).
36 See Spagnuolo v. Whirlpool Corp., 467 F. Supp. 364 (W.D.N.C. 1979); Percell v. Int’l Bus. Mach., Inc., 765 F. Supp. 297 (E.D.N.C. 1991), aff’d 23 F.3d 402 (4th Cir. 1994) (table); Smith v. Apple Computer, 1993 WL 723478 (W.D.N.C. 1993).
37 Emp. Discrim. Coord., supra note 578, at § 37:49.
38 See Newton v. Lat Purser & Assocs., Inc., 843 F. Supp. 1022 (W.D.N.C. 1994).
39 10A N.C. Admin. Code 5C.0216 (2010).
40 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#4 (last visited Mar. 3, 2010).
41 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#3 (last visited Mar. 3, 2010).
42 Id.
43 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/ (last visited Mar. 3, 2010).
44 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html#7 (last visited Mar. 3, 2010).
45 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#8 (last visited Mar. 3, 2010).
46 Id.
47 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#13 (last visited Mar. 3, 2010).
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.
54 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html#13 (last Visited Jan 10, 2010).
55 Della McDougal-Wilson v. Goodyear Tire & Rubber Co., 427 F.Supp.2d 595, 602 (E.D.N.C. 2006).