EEOC Targeting Gender Pay Equity

According to multiple sources, the Equal Employment Opportunity Commission, in concert with other agencies, is launching an aggressive campaign to identify and prosecute cases of gender-based pay inequities.  While concern about equal pay for equal work is an old one, reaching back as far as the Equal Pay Act of 1963, it has recently resurfaced with a vengeance, headlined by the Lilly Ledbetter Fair Pay Act of 2009, and now the institution of pilot programs to tackle gender based pay discrimination through “direct investigations.”  A direct investigation is one initiated by an agency without the filing of a complaint — a tool that EEOC can use because the Equal Pay Act is enforced pursuant to the Fair Labor Standards Act.

What this means, in short, is that the EEOC can knock on the door of virtually any employer covered under the Act and initiate an investigation.  Apparently more than 2000 enforcement personnel from the EEOC, OFCCP, Wage and Hour Division and state and local civil rights agencies have been provided with compensation discrimination training, and are being encouraged to reach out and find discrimination wherever it may be found.

What constitutes “pay discrimination” is still a rather fuzzy concept.  In some cases it is clear — two employees with the same job, similar tenure and performance, etc., should clearly be paid similarly.  There are many legitimate reasons why employees in the same job would be paid differently — pursuant to a merit pay or seniority based pay program, for example.  However, the stickier situation is one in which it is alleged that the work is “of substantially equal value” rather than “the same.”  The argument over the application of the concept of “comparable worth” is also an old one, but will come again to the forefront.  Pending the results of the next election, assume that there may be attempts to expand Lilly Ledbetter and move the country toward a true comparable worth standard.

Honestly, however, there really is not reason to fear the concept.  The truth is, a well designed compensation program ensures that pay opportunities for jobs will be tied to their contribution to the organization as a whole.  “Comparable worth” really is the objective of most job evaluation programs, and not only is there nothing wrong with it, it’s what you should be striving for.  Effective job evaluation systems lead to effective compensation programs which not only help to attract, retain and motivate the best possible employees, but should help insulate the organization against gender-based pay discrimination actions.

To find out where your organization stands, and the likelihood that you will find yourself on the hot seat of the EEOC comes knocking, contact Merces and ask for a copy of our Pay System Assessment tool.   You can find more about our services on our website: http://www.mercesconsulting.com

About Edmund B. Ura

Edmund B. Ura, MAIR, JD, works with governing boards, executives and human resources staff to develop methodologies for ensuring fair and equitable compensation programs that support achievement of organizations' missions. Contact Ed at ebura@mercesconsulting.com.

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