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When Is a Pay Disparity Valid?
An employer is allowed to have pay disparities under the Equal Pay Act if the differentiation is not based on gender. If an employee establishes a claim against an employer for an Equal Pay Act violation, the employer can offer an affirmative defense to invalidate the claim.
To prove that a pay disparity is not based on gender discrimination, an employer must provide tangible proof, in the form of a legitimate business structure, such as:
- Bona Fine Seniority
- Bona Fide Merit
- Bona Fide Occupational Qualification (BFOQ)
- Pay system based on earnings as measured by quantity or quality of production
An employer may also offer other factors including experience, prior salary, educational achievement, or proven ability to generate higher revenue to support a pay differential. However, employers must be careful not to establish a differential based on any other protected class such as race, ethnicity, nationality, age or disability which would also be a violation.
Similar Working Conditions
Generally, an employer may not claim that working day versus night shifts or inside versus outside is automatically a dissimilar working conditions justifying a pay differential if the work, despite this difference, is substantially the same. However, they can be used as a defense if the employer can establish that the pay difference is typical of industry standards.
Can an Employer Lower another Wage to Avoid Wage Discrimination?
No, when an employer corrects a pay difference, no employee's wage may be reduced. It is the lower paid employee's salary that must be raised.
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Last Modified: 05-20-2015 02:53 PM PDT
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