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Equal Pay Act of (1963)

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In an effort to end gender-based discrimination in labor wages, Congress enacted the Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (codified at 29 U.S.C.A. § 206(b)). The act established the requirement that women should receive "equal pay for equal work." However, the average wages given to women are still lower than those of men, and some critics have deemed the Equal Pay Act as a failure.

Congress had attempted on a number of occasions prior to 1963 to enact similar legislation. The idea for the statute arose during WORLD WAR II, when many women entered the workforce while men were overseas. The War Labor Board established a policy of "equal pay for women." According to its policy, women were to receive equal pay for work that was of "comparable quality and quantity" to the responsibilities of men. When members of Congress introduced legislation called the Women's Equal Pay Act of 1945, it contained the phrase "comparable work." This provision was the subject of a heated debate, and the bill failed to pass.

In the years that followed World War II, men reemerged as dominant figures in the workforce and attempts in Congress to enact an equal pay law stalled. During the early 1960s, however, Congress reconsidered the issue. When the phrase "equal work" was employed instead of "comparable work," the legislation garnered sufficient support to be enacted into law. The act amended the Fair Labor Standard Act of 1938, 29 U.S.C.A. §§ 201-209 (2000).

Congress stated that its intent in enacting the Equal Pay Act was to establish a "broad charter of women's rights," designed to remedy a "serious and endemic" problem of SEX DISCRIMINATION in the workplace. Under the act, employers are prohibited from discriminating against women on the basis of sex when women perform jobs requiring "equal skill, effort, and responsibility, and which are performed under similar working conditions" as jobs performed by men. In order to recover under the act, a woman must prove that (1) an employer paid higher wages to men than to women; (2) male and female employees conduct an equal amount of work that requires substantially equal skill, effort, and responsibility; and (3) men and women performed the work under similar working conditions.

The act establishes four main defenses for employers. An employer may pay a male employee more than a female employee if the employer can establish that payment is based upon (1) a seniority system, (2) a merit system, (3) a system whereby earnings are based upon the quantity and quality of production by the employees, or (4) a differential based upon any other factor other than the sex of the employees. Although the first three of these defenses have been the subjects of litigation, the fourth exception has been litigated more frequently.

Lower federal courts have struggled with the so-called factor-other-than-sex defense, and the U.S. Supreme Court has rendered few decisions on the issue. In Corning Glass Works Co. v. Brennan 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974), the Court ruled that an employer's policy of paying men who worked during a night shift more than women who worked the same jobs during the day shift violated the act. The Court found that the policy was related to gender because the employer knew that women would work for less money. Three years later, in City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 7370, 55 L. Ed. 2d 657 (1977), the Court ruled that a policy requiring women to contribute more to their PENSION funds than men violated the act. The employer in the case based its policy on mortality tables indicating that women had a longer life span than men, so the women were required to pay higher rates for their pension funds. Since this policy was based on gender, the Court ruled that the employer had violated the act.

Lower federal courts have established a number of tests to determine whether an employer has adopted a wage policy based on a factor other than sex. Some circuits require an employer to demonstrate a gender-neutral wage policy that accounts for disparity in wages between men and women. Other circuits require an employer to show that the gender-neutral system of wages is based upon the performance of a woman's job duties or that a gender-neutral system was adopted to serve a legitimate business reason.

The application of the act is limited for other reasons as well. Several courts have noted that the Equal Pay Act does not establish a system of "comparable worth," because the act specifically applies to "equal work." EEOC v. Madison Community Unit School District No. 12, 818 F.2d 577 (7th Cir. 1987). Accordingly, courts must generally compare the wages of men and women performing the same jobs for the same company when considering a complaint brought under the act.

The limitations of the Equal Pay Act has led a number of commentators to criticize its provision and the application of the act in the courts. Many critics note that the wages of women are still significantly lower than those of men, even though employers have become more willing to hire women. In 1997, President BILL CLINTON declared April 11, 1997 to be the "National Pay Inequity Awareness Day," which signified to these critics that serious problems in pay inequities still existed.

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