If a female and a male employee both hold the same position but one of the two is being paid less than the other, the underpaid employee may be protected by the Equal Pay Act (“EPA”) or for disparate wages, as a form of sex/gender discrimination prohibited under Title VII of the Civil Rights Act of 1964 (“Title VII”). In fact, to be actionable, both employees do not even have to have the same exact job title. Instead, if the job description and responsibilities are the same, or essentially the same, it may suffice.
It is important to note that simply because there is a wage disparity does not automatically mean that the employer is acting unlawfully. Under the EPA, a wage disparity is allowed if it is based on pre-set system by the company, such as: a seniority, merit, quantity/quality of production, or any other system or criteria that is not based on gender.
Additionally, the EPA does not require “intent to discriminate” on behalf of the employer. Essentially, the unequal pay practice establishes “strict liability” against the employer. On the other hand, a disparate wage, Title VII Plaintiff must establish “intent to discriminate” in order to hold the employer liable.
Because the EPA is enforceable under the Fair Labor Standards Act (“FLSA”), the potential recoverable damages for a successful Plaintiff is the difference in pay for the previous two (2) years (or three (3) years, if deemed a willful violation by the employer), plus liquidated damages (double the wages owed). Under Title VII, a successful Plaintiff in a disparate wage is can recover not only his or her back wages, but up to $300,000 in compensatory and potential punitive damages as well.
If you think you may be a victim to gender discrimination based on wage disparity, contact our firm today. At Wilson McCoy, P.A., we will evaluate your case under both legal theories and determine which may apply. Our number is 407-803-5400 or you mail e-mail us at [email protected]