By Jack Tuckner, Esq.

If you believe that you are being paid less than your male counterparts for performing an equal or a substantially equal job, you may be interested to learn the laws protect you from illegal pay discrimination. The following is a summary of such laws that may apply to New York workers:

  • Equal Pay Act (“EPA”) – The federal EPA requires that men and women be paid equally for equal work in the same establishment. The jobs do not need to be identical, but they must be substantially equal. It is the job content, not the job title, that determines whether jobs are substantially equal. The EPA states that employers can’t pay unequal wages to men and women who perform jobs that require substantially equal skill, effort, and responsibility, and that are performed under similar working conditions within the same establishment. Learn More about the Equal Pay Act. {Link to the page above}

 

  • Title VII– Title VII is part of the Civil Rights Act of 1964, the foundational law that prohibits workplace discrimination based on certain protected characteristics, such as sex. So, if you’re being paid less than a male counterpart for performing work that is substantially similar to your work, that’s illegal sex discrimination, plain and simple.

 

  • State Laws. For New Yorkers, this includes the New York Equal Pay Law, and for New Jerseyans, this includes the New Jersey Equal Pay Act, for just two state law examples.


Who is Covered by the Unequal Pay laws?

 

Title VII and the EPA cover all private and public US employers that employ 15 or more people.

Many state and city laws also make it illegal to discriminate based on sex (or gender), and many of those laws—such as the New York State and New York City Human Rights Laws—provide far broader protections for sex discrimination, including unequal pay, than the federal EPA.

Many state and city anti-discrimination laws also cover employers with fewer than 15 employees, so if you work for a small employer and you’re not covered under federal law, you’re likely covered under your state’s law, and you’re certainly covered if you work in NY or NJ.

And, the NY Equal Pay Law now applies to all NY employers, regardless of size.

 

How Pay Secrecy Policies Discriminate Against Women.

Pay secrecy policies restrict workers from sharing information about their pay with other workers. Historically, these laws served to perpetuate gender-based pay discrimination. A male worker could not, under such policy, share his pay information with a woman for fear of being fired and women, conversely, were kept in the dark about how much their male counterparts were making. If a woman found out about how much a male counterpart was making (such as by accidentally overhearing him talk about his pay), she knew that he might be fired if she then went to management and told them that she knew she was being paid substantially less than him.

Today, several states have laws that prohibit pay secrecy policies, including New York, California, Maine, Nebraska, North Dakota, Oregon, South Dakota, and West Virginia. For example, the New York law prohibits employers from restricting employees’ ability to inquire about, discuss, or disclose wages with other employees.  The effect of these new laws will be to decrease gender pay disparity that mostly adversely affects women.

The New Jersey Equal Pay Act – Protecting Against Pay Discrimination for Everyone

In addition to New York, New Jersey has also passed a comprehensive equal pay law. Effective July 1, 2018, the Diane B. Allen Equal Pay Act became one of the better equal pay laws in the country. Before its enactment, equal pay was governed generally by the flawed federal law and the NJ Law Against Discrimination (NJLAD), which is aimed at abolishing pay disparity only on the basis of sex.

The NJ Equal Pay Act amended the NJLAD by expanding the ban against pay discrimination because of an employee’s inclusion in any protected class. That means equal pay for everyone regardless of race, gender, age, ethnicity, religion, etc. Very nicely done, New Jersey.

This NJ law will increase the possibility that women uncover pay discrimination, it strengthens the avenues of redress when women are seeking workplace justice, it expands the number of years of back pay a victim of sex-based pay discrimination can recover, and it promises the possibility of treble damages (three times the actual harm done), compensatory and punitive damages to deter companies from perpetuating wage discrimination, and attorneys’ fees to the winning unequal pay Plaintiff. This attorneys’ fee provision makes it much more beneficial for a worker who is subjected to illegal pay discrimination to bring a case, as workers will be able to keep more of the judgment against the company if you win your unequal pay case in court.

 

New York has also recently amended its anti-discrimination statute to include any protected class, and the gender pay disparity remedies have become substantially more powerful.  See the New York pay equity discussion.

What are the Federal Remedies Available if My Company is Guilty of Pay Discrimination?

Plaintiffs who prove their claim of unequal pay as sex discrimination may recover: (depending on whether a case is arbitrated based on a collective union contract or litigated in federal court)

  • back pay
  • hiring
  • promotion
  • reinstatement
  • front pay
  • compensatory damages (emotional pain and suffering)
  • punitive damages (to punish the employer and dissuade it from future illegal conduct)
  • other actions that will make an individual “whole” (in the condition she would have been if she wasn’t discriminated against due to her sex or because she complained of unequal pay).

 

Remedies also may include the payment of:

  • attorneys’ fees
  • expert witness fees
  • court costs.

Are you Protected Against Retaliation under Federal Laws, i.e., Title VII and the EPA?

Yes. As long as your company has at least 15 employees, it’s unlawful for your employer to retaliate against you for “opposing an unlawful employment practice” that discriminates based on compensation; or for filing an internal discrimination complaint, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII or the Equal Pay Act.

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