Allegations of Pay Discrimination by Texas Attorney General Shine Light on Systemic Problem of Gender-Based Wage Disparity

Equal pay for women is in the spotlight of the Texas governor's race, and figures from the Texas Attorney General's office show most female assistant attorneys general make less on average than do men in the same job classification. The San Antonio Express News has published an analysis of the agency's pay statistics and found that of the top 20 highest-paid employees at the agency, just three are women. Of the 100 top positions, only 37 are held by women. The analysis indicates that the disparity cannot be accounted for simply by seeking a correlation between experience and pay among the assistant attorneys general.

Does this necessarily mean that the Attorney General is purposely discriminating against female lawyers in the agency? Possibly not. But it doesn served to shine a light on a  problem the affects employers all across the country - that being systemic gender discrimination against women based on old ways of thinking about gender in the workplace.

What is the Equal Pay Act?

In 1963, Congress passed the Equal Pay Act ("EPA" or the "Act") as an amendment to the Fair Labor Standards Act, to "prohibit discrimination on account of sex in the payment of wages by employers." Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of "concern for the weaker bargaining position of women" to provide a remedy to discriminatory wage structures that reflect "an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman." It should be noted, however, that the EPA protects both men and women.

The EPA prohibits "employer[s] ... [from] discriminat[ing] … on the basis of sex by paying wages to employees [...] at a rate less than the rate [paid] to employees of the opposite sex [...] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]" To establish a case under the EPA, an employee must show that:

  1. different wages are paid to employees of the opposite sex;
  2. the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and
  3. the jobs are performed under similar working conditions.

The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility, and that are performed under similar working conditions.

It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements noted above, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.

What to do if you believe you have been paid less due to your sex / gender:

An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.

Important: If you believe that you are or have been discriminated against on the basis of your gender, you should consult an employment attorney immediately. The EPA contains a rigid two-year look back period. Any claim based on wages beyond that period may be lost so it is important that you file as soon as possible.


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