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Gender discrimination has taken many forms and includes wage rates which have been

addressed separately from discrimination under Title VII. Under federal and state law the practice
is unlawful. The pay rate must be the same for both genders with some exceptions.
The Federal Equal Pay Act specifically states that no employer having employees subject to
any provisions of 29 USC ' 206(d) shall discriminate, within any establishment in which
such employees are employed, between employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the rate at which he pays wages to employees
of the opposite sex in such establishment for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar working
conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit
system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a
differential based on any other factor other than sex: Provided, that an employer who is paying a
wage rate differential in violation of this subsection shall not, in order to comply with the
provisions of this subsection, reduce the wage rate of any employee.
Meaning that unless there is some sort of seniority system, or pay is based on merit, or pay
is based on the quantity or quality of the production, or pay is based on something other than the
person=s gender, the pay rate has to be the same for both genders. By other the courts have
interpreted to mean that the basis for paying a different rate for men and women is a legitimate
neutral factor adopted for reasons other than paying men and women different rates.
The equal pay act also prohibits labor organizations, their agents, representing employees
of an employer from discriminating an employee in violation of the equal pay act.
If there is discrimination then the wages owed are treated as if the employer had failed to
pay minimum wage or overtime pay. Which subjects the employer to liability not only for wages
due, but also for attorney fees, and penalties.
Unlike a sexual discrimination case, in these types of cases the employee is not required to
prove intent on the part of the employer. If men and women do the same job and have
substantially the same amount of skill and experience, then the pay rate must be the same.
Employers are allowed to pay different rates for different shifts, if women happen to
dominate one shift and men the other, then it is permissible, as long as the night shift is the higher
paid shift and it is clearly not the intent of the employer to discriminate.
Employers are not permitted to require greater contributions to pension plans from
women, even though women are the gender with the higher life expectancy.
The going market rate is not an excuse and not permitted as means to pay men more than
The California Equal Pay Act is substantially the same as the federal act and covers all
employers, regardless of size. A claimant is required to file suit within two years or if the act was
willful within three years. The claimant is entitled to backpay, an equal amount in liquidated
damages, interest, costs, and attorney fees. The courts have rejected comparable worth claims
under the Equal Pay Act where the employee seeks equal pay for dissimilar jobs on the theory of
comparable worth for the respective jobs.
Some organizations have resisted paying men and women equally on the grounds that men
have families to support, this argument has been rejected by the courts and the courts don=t look
favorably to such defenses to gender based pay discrimination.