Wage Discrimination

What is wage discrimination?

Generally speaking, wage discrimination is the practice of paying women less than men for the same or similar work.¹ This covers regular wages as well as bonuses, benefits, privileges and other forms of compensation.² However, employers are allowed to pay employees differently if the pay scale is based on seniority, merit, the quality or quantity of work done, or another job related difference.³

There are laws at both the state and federal level that make it illegal for employers to engage in wage discrimination, but these laws may differ as to how discrimination is defined, which employers and employees are covered, and the process for filing a lawsuit.

What laws cover wage discrimination?

At the federal level, Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963 (EPA) both make wage discrimination illegal. Pennsylvania has passed two very similar laws that apply at the state level: the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Equal Pay Law (EPL). Each of these laws is explained in detail below.

What protection does the PHRA give me?

The PHRA makes it illegal to discriminate in pay based on sex, unless it is part of a bona fide policy, so long as the employee is the best able and most competent to perform the services required.⁴

Who does the PHRA cover?

The PHRA covers employers who have four or more employees, including government agencies, charities, and religious organizations.⁵ It does not cover agricultural or domestic workers, workers who live in the personal residence of their employer as part of their job, or individuals employed by family members.⁶ All other employees are covered.

How do I bring a claim in Pennsylvania?

The Pennsylvania courts have repeatedly held that there are no separate common law remedies for sex discrimination, including wrongful termination and sexual harassment, because the PHRA preempts all other claims based on discrimination.⁷ You cannot go directly to court under the PHRA, rather you must first file a complaint with the PHRC.⁸ The only exception to this is that the EPL allows individuals to sue on their own behalf.⁹
See How to File a Claim with PHRC.

What state laws protect me from sexual harassment?

The Pennsylvania Human Relations Act (PHRA) provides women with recourse for sexual harassment claims. ¹⁴

How long do I have to bring a claim?

You have 180 days to bring a claim under the PHRA. ¹⁰

What can I recover?

If the PHRC determines that your employer has engaged in any lawful discrimination, it will issue an order requiring your employer to stop the discriminatory practice, and can also force your employer to take steps to right its wrongs. This can mean hiring, reinstating, or prompting you. It may also mean paying for lost wages caused by your employer’s refusal to hire you, promote you to a better job, or pay you the wages you deserve for the job you are already doing. In addition, the PHRC may force your employer to compensate you for any costs associated with bringing the complaint, such as travel costs or lost days at work. ¹¹

What can my employer do if I bring a claim?

It is illegal to fire or otherwise punish an employee who complains about illegal activity, brings a claim under the PHRA or otherwise participates in a suit brought under the PHRA (such as testifying). ¹²

What do I need to show to win a case?

Courts have held that the PHRA is to be interpreted under the guidelines of Title VII. ¹³
See Disparate Impact and Disparate Treatment.

Who does the EPL cover?

The EPL covers virtually all employees and employers, except those covered by the federal Equal Pay Act.¹⁴ Courts have interpreted this exception as excluding individuals who have brought suit under the federal Equal Pay Act, so an employee cannot charge their employer with violations of both.¹⁵

What protection does the EPL provide me?

The EPL makes it illegal for employers to pay men and women differently for equal work.¹⁶

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

Under the EPL, employers are allowed to pay employees differently if the discrepancy is based on seniority, merit, quantity or quality of work produced, or a difference other than gender.¹⁷

How do I bring a claim under the EPL?

The EPL allows employees to bring suit on their own behalf, as well as on behalf of other employees who are being discriminated against in a similar manner.¹⁸ However, it may be best to consult the PHRC because claims under the EPL may overlap with claims under the PHRA, which requires that a complaint be filed with the PHRC.

How long do I have to bring a claim under the EPL?

A claim must be brought within two years of the discrimination.¹⁹

What can I recover under the EPL?

If an employer is found to have violated the EPL, the employer will be liable for double the lost wages. ²⁰

What can my employer do if I bring a claim under the EPL?

It is illegal for an employer to fire or otherwise punish an employee for bringing a suit under the EPL or for testifying in such a case.²¹ If an employer is found to have violated the EPL, it cannot lower the wages of the higher paid employee in order to comply. ²²

What protection does Title VII give me?

Title VII makes it illegal for employers to discriminate on the basis of sex, including in the payment of wages and benefits.²³ 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.

Am I covered by Title VII?

Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.²⁴ 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.²⁵ Other exemptions include: private membership clubs which have received tax exempt status,²⁶ Indian tribes,²⁷ and public international organizations such as the International Monetary Fund and the World Bank.²⁸

How do I bring a claim under Title VII?

In order to bring a claim under Title VII, you have to go through the Equal Employment Opportunity Commission (EEOC). You cannot bring a case to court without first doing so.
See The EEOC Process for more information.

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

Federal employees must file a claim with the agency committing the discrimination within 45 days.²⁹ Because the PHRC is Pennsylvania’s Fair Employment Practices Agency, private employees have 300 days after the alleged discriminatory practice to file a complaint. ³⁰

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.³¹ That is, the 300-day period starts over with every unequal paycheck.
See The EEOC Process for more information.

What remedies am I entitled to 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.³²

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.³³

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. These payments are limited by the size of your employer.³⁵

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

It is illegal for an employer to retaliate against a person because they complain, file a charge, or otherwise participate in an employment discrimination dispute, such as testifying in a case brought by another individual. ³⁶

What protection does the EPA give me?

The EPA makes it illegal to give men and women unequal pay for equal work. ³⁷

Who does the EPA cover?

The EPA covers just about all employers and employees, without any limitation on the number of employees.³⁸

What counts as equal work under the EPA?

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).³⁹
2. Effort – The mental and physical exertion required to perform the job and the mental and physical stress caused by the job.⁴⁰
3. Responsibility – What the employee is accountable for and how important the work is. ⁴¹
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. ⁴²
5. Establishment – This typically refers to a single place of business, but under certain conditions can include multiple locations that are geographically removed. ⁴³

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

Under the EPA, employers are allowed to pay employees differently if the discrepancy is based on seniority, merit, quantity or quality of work produced, or a difference other than gender. ⁴⁴

How do I bring a claim under the EPA?

The EPA gives employees a private right of action, meaning you can sue on your own behalf to recover lost wages.⁴⁵ However, it may be best to go through the EEOC because you can only bring Title VII claims through the EEOC, and these claims often overlap.

How long do I have to bring a claim under the EPA?

You can bring a case in court up to two years after the discrimination has occurred, and three years if the discrimination is willful. This time period does not get extended even if you first file a complaint with an administrative body, such as the EEOC or PHRC.⁴⁵

What do I need to show to win a case under the EPA?

The EPA does not require proof of discriminatory intent.⁴⁷ If you can show that you are receiving lower pay than a man for equal work and your employer cannot prove one of the four exceptions, your employer is automatically liable for back wages.⁴⁸

What can I recover if I win a case 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 order your employer to pay double the lost wages. ⁴⁹

What can my employer do if I bring a claim under the EPA?

It is illegal for your employer to fire or otherwise punish any employee for bringing a suit under the EPA or for testifying in such a case. If your employer is found to have violated the EPA, he cannot lower the wages of the higher paid employee in order to comply.⁵¹

Wage Discrimination: “It Happened to Me” ⁵²

Sonjia Steiner-Westfall (Steiner-Westfall) started working for Charlie O’s Hardwood Grill and Lounge (Charlie O’s) in November of 2005 making $8.25 an hour as a line cook. After a month or so, she received a slight raise of $0.25 an hour. However, two male line cooks were soon hired, making $14.00 an hour and $10.50 an hour, and Steiner-Westfall was fired shortly after that. She then worked a series of jobs making roughly the same wage she had at Charlie O’s.

Steiner-Westfall filed a complaint with the Pennsylvania Human Rights Commission (PHRC) after being fired. She alleged that Charlie O’s had paid her unfairly and terminated her because she was a woman. The PHRC attempted to contact Charlie O’s, but never received a response. As a result, the Commissioner recommended that Charlie O’s be found liable. At this point, the PHRC attempted to conciliate with Charlie O’s on the issue of how much money it owed to Steiner-Westfall, but no agreement could be reached. After about six months, a public hearing was held to determine how much it owed her.

The Commissioner not only awarded Steiner-Westfall the difference between what she was being paid and what the male line cooks were being paid on average (which came to $12.25 an hour), but he also awarded her the difference between this higher wage and what she was forced to work for after being fired. She had been shortchanged $1,200 while working for Charlie O’s, and another $11,110 while working at other jobs. Steiner-Westfall was also awarded $73.50 in travel expenses she needed to pay to file her complaint and attend the hearings.

The total damages came out to $12,383.50!

¹ EEOC, http://www.eeoc.gov/laws/types/equalcompensation.cfm (last visited Mar. 2, 2010).
² Id.
³ 29 U.S.C.A. § 206(d)(1) (West 2009).
⁴ 43 Pa. Cons. Stat. Ann. § 955(a) (West 2010).
⁵ Id. at § 954(b).
⁶ Id. at § 954(c).
⁷ Brennan v. Nat’l Telephone Directory Corp., 850 F. Supp. 331, 345 (E.D. Pa. 1994); Clay v, Advanced Computer Applicatons, Inc., 559 A.2d 917 (Pa. 1989).
⁸ 43 Pa. Cons. Stat. Ann. § 962(b) (West 2010).
⁹ Id. at § 336.5.
¹⁰ Id. at § 959(h).
¹¹ Id. at § 959(f)(1).
¹² Id. at § 955(d).
¹³ Dici v. Com. of Pa., 91 F.3d 542, 552 (Pa. 1996).
¹⁴ 43 Pa. Cons. Stat. Ann. § 336.2 (West 2010).
¹⁵ Bradford v. Peoples Natural Gas Co., Inc, 60 F.R.D. 432, 437 (W.D. Pa. 1973).
¹⁶ 43 Pa. Cons. Stat. Ann. § 336.3(a) (West 2010).
¹⁷ Id. at § 336.3(a).
¹⁸ Id. at § 336.5(a).
¹⁹ Id. at § 336.5(b).
²⁰ Id. at § 336.5(a).
²¹ Id. at § 336.8(a).
²² Id. at § 336.3(a).
²³ 42 U.S.C.A. § 2000e-2(a)(1) (West 2009).
²⁴ Id. at § 2000e(b).
²⁵ 29 C.F.R. § 1614.103 (2009).
²⁶ EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (last visited Mar. 1, 2010).
²⁷ EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (last visited Mar. 1, 2010).
²⁸ EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (last visited Mar. 1, 2010).
²⁹ 29 C.F.R. § 1614.105(a)(1) (2010).
³⁰ EEOC Compliance Manual “Threshold Issues” http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Feb. 26, 2010)
³¹ Lilly Ledbetter Pay Act of 2009, 42 U.S.C.A. § 2000e-5(e)(3)(A) (West 2009).
³² 42 U.S.C.A. § 2000e-5(g)(1) (West 2009).
³³ Id. at § 2000e-5(g)(2)(B)(i)-(ii).
³⁴ Id. at § 1981a-(b)(1).
³⁵ Id. at § 1981a-(b)(3).
³⁶ Id. at § 2000e-3(a).
³⁷ 29 U.S.C.A. § 206(d)(1) (West 2009).
³⁸ Id.
³⁹ 7 A.L.R. Fed. 707 (2009).
⁴⁰ Id.
⁴¹ Id.
⁴² Id.
⁴³ 124 A.L.R. Fed. 159 (2009).
⁴⁴ 29 U.S.C.A. § 206(d)(1) (West 2010).
⁴⁵ Id. at § 216(b).
⁴⁶ 29 C.F.R. § 1614.408 (2009).
⁴⁷ Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir.1992).
⁴⁸ 29 U.S.C.A. § 255(a) (West 2010).
⁴⁹ 29 C.F.R. § 1614.408 (2009).
⁵⁰ 29 U.S.C.A. § 215(a)(3) (West 2009).
⁵¹ Id. at § 206(d)(1).
⁵² Pennsylvania Human Rights Commission, http://sites.state.pa.us/PA_Exec/PHRC/legal/finalorders/200505227.pdf (last visited Feb. 26, 2010).