If you believe you are being paid less than your male counterparts for doing the same work when it's clear you have at least as much skill, experience and responsibility, you may want to consider talking your situation through with an attorney as a first step.
With discriminatory pay based on gender/sex, two laws are at play. The first is Title VII, which prohibits discrimination based on sex. The second is the Equal Pay Act, which makes it unlawful to pay men and women differently for equal work (i.e., work involving similar skill, effort, responsibility and working conditions). Here, we'll break down the pros and cons of a claim under each of these laws, and what you'll need to keep in mind about both.
Title VII gender/sex discrimination claim
- You must file a complaint with the Equal Employment Opportunity Commission (EEOC) to bring a Title VII claim.
- There is a short statute of limitations, generally 180 days from the last act of discriminatory pay for private employers, but when the clock starts may vary.
- The EEOC can take anywhere from weeks to years to investigate your claim.
- Title VII imposes a heay burden: you will have to prove there was intent to discriminate because of sex.
- Damages under Title VII are capped and depend on the number of employees the business has.
- A minimum of 15 employees is required to bring a Title VII claim.
- Your rights will be preserved if the EEOC investigation runs long, because the statute of limitations will be tolled, or paused.
- You will not have to prove “equal work” or “similar working conditions” as you would with an EPA claim – i.e., no higher-paid male counterpart is necessary, only a showing of discriminatory underpayment.
Equal Pay Act (EPA) claim
- The EEOC will investigate EPA claims just as they will Title VII claims, but this can be tricky: the statute of limitations is NOT tolled for EPA claims during an EEOC investigation.
- Certain industries are exempt from EPA claims (but not from Title VII claims).
- You won't have to file a complaint with the EEOC before you file suit.
- There is a longer statute of limitations and period for calculating back pay, generally 2 years, but up to 3 years if your employer acted willfully.
- EPA claims are less burdensome - you don't have to prove intent to discriminate as you would with Title VII.
- The EPA has a “double damages” provision that Title VII doesn't have, so the potential for recovery could be significant.
The takeaway is that pay discrimination claims can be brought under Title VII or the EPA, or both, but there are strategic features of each that must be considered. EPA claims left to languish during long EEOC investigations may be lost forever. If you believe you have an equal pay claim, talk with an attorney sooner rather than later so that you don't risk losing any rights.