The Catholic University of America

Summary of Federal Laws

Employment

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Related Policy

Equal Opportunity

Equal Employment Opportunity

Equal Pay Act of 1963 (part of the Fair Labor Standards Act of 1938)

29 U.S.C. § 206(d); 29 C.F.R. Part 1620.1 et seq.

Prohibits sex discrimination in compensation or benefits for women and men who work in the same establishment and perform jobs that require equal skill, effort, and responsibility and which are performed under similar conditions.

Recordkeeping: See 29 C.F.R. § 1620.32. Employers must keep and preserve all records required by the applicable sections of 29 C.F.R. § 516 (Fair Labor Standards Act of 1938 (FLSA)) and, in addition, shall preserve any records made in the regular course of business relating to wages, job evaluations and descriptions, merit systems, seniority systems, collective bargaining systems, and any other matters which explain the difference for any wage differential for employees of the opposite sex in the same establishment. Records explaining the wage differential must be kept for two years.

Posting: A summary of the law must be posted. See FLSA regulations at 29 C.F.R. § 516.4.

Guidance: EEOC Notice Number 915.002 (Oct. 29, 1997) Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions clarifies how the Equal Pay Act and Title VII apply to sex-based differences in the compensations of sports coaches.

Compliance Manual: Chapter 3 of the EEOC compliance manual entitled Employee Benefits, explains how the employment discrimination laws apply to life and health insurance benefits, long-term and short-term disability benefits, severance benefits, pension or other retirement benefits, and early retirement incentives. The section covers discrimination in these benefits under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964 (Title VII), and the Equal Pay Act (EPA).

Section 10 of the Compliance Manual covers complaints of discrimination in compensation based under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964 (Title VII), and the Equal Pay Act (EPA). The following are examples of compensation discrimination addressed in the Compliance Manual:

  • an employer pays employees inside a protected class less than similarly situated employees outside the protected class, and the employer's explanation (if any) does not satisfactorily account for the differential;

  • an employer maintains a neutral compensation policy or practice that has an adverse impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity;

  • an employer sets the pay for jobs predominantly held by protected class members below that suggested by the employer's job evaluation study, while the pay for jobs predominantly held by employees outside the protected class is consistent with the level suggested by the job evaluation study;

  • a discriminatory compensation system has been discontinued, but salary disparities caused by the system have not been eradicated; or

  • the compensation of one or more employees in a protected class is artificially depressed because of a discriminatory employer practice that affects compensation, such as steering employees in a protected class to lower paid jobs than persons outside the class, or discriminating in promotions, performance appraisals, procedures for assigning work, or training opportunities.

Title VII, the ADEA, and the ADA prohibit discrimination in "compensation" based on race, color, religion, sex, national origin, age, disability, or protected activity.

On Jan. 29, 2016 President Obama signed an Executive Order which amends EO 11246 applicable to federal contractors and states as follows in part: 

The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.

Final Rule, 80 Fed. Reg. 54933, Government Contractors, Prohibitions Against Pay Secrecy, Effective 1/11/16, published Sept. 11, 2015. 

The final rule protects employees' inquiries, discussions, and disclosures of their own pay and benefits, and similar employee activities related to the pay and benefits of others, if they obtained that information through ordinary means such as conversations with co-workers. What the Order, and in turn this final rule, does not protect is the disclosure of others' pay information that an employee obtained as part of the employee's essential job functions. So, for example, if the employee making the disclosure to others had access to the information as a part of carrying out the essential job functions of the position of payroll administrator or benefits administrator, the contractor may be justified in taking adverse action based on that disclosure. This is because the employee, as payroll or benefits administrator, had access to the information as an essential part of the job and shared that information with others who do not otherwise have access to such information, which could undermine a contractor's ability to maintain necessary confidentiality concerning compensation. The nondiscrimination provision of the final rule may not protect this employee. The final rule specifically allows a contractor to take adverse action when an employee, with access to compensation information as part of an essential job function, discloses that information to others and the disclosure does not fall into one of the exemptions. The exemptions are disclosures made in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing or action, including an investigation by the contractor, or disclosures consistent with the contractor's legal duty to furnish the information.

 Resources

 

Facts about Equal Pay Act and Compensation Discrimination*

Fact Sheet: New Steps to Advance Equal Pay 

Executive Order 13665 for Non-Retaliation for Disclosure of Compensation Information 

Presidential Memorandum advancing Pay Equality through Compensation Data Collection, April 8, 2014.  

 

mlo updated links and added text 1-2-18