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Obama Administration Announces New Actions to Advance Equal Pay

On the seventh anniversary of the Lilly Ledbetter Fair Pay Act, President Obama and the U.S. Equal Employment Opportunity Commission (EEOC) announced new actions to advance equal pay for equal work. President Obama, EEOC Chair Jenny Yang, and EEOC Commissioner Charlotte Burrows announced on Friday, January 29 that the EEOC, White House, and U.S. Department of Labor will be taking targeted steps to combat sex discrimination in pay and bolster the Equal Pay Act.

The Equal Pay Act (EPA) prohibits pay discrimination on the basis of gender, requiring employers to pay similarly situated employees the same wage regardless of whether the employee is a male or female. The law focuses on job content, not job titles, to determine whether jobs are substantially equal. The EPA provides that employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. The EPA protects both men and women, and bars retaliation against employees for asserting their rights under the statute.

The Lilly Ledbetter Fair Pay Act, passed by Congress in 2009 to reverse the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., made clear that each discriminatory paycheck, and not just an employer’s original decision to engage in pay discrimination, resets the period of time during which a worker can file a claim of pay discrimination.

With an introduction from Lilly Ledbetter herself, President Obama announced the following actions designed to advance equal pay for all workers and improve enforcement of equal pay laws:

1. The EEOC, in partnership with the U.S. Department of Labor, will publish a proposal to annually collect summary pay data by gender, race, and ethnicity from businesses with 100 or more employees. This proposal would cover over 63 million employees across the country, and stems from a recommendation of the Administration’s Equal Pay Task Force and a Presidential Memorandum issued in April 2014. With increased access to data and transparency around wages, agencies will be able to focus public enforcement and analyze trends in discriminatory pay practices across industries and occupations.

2. The Council of Economic Advisers released an issue brief, the “Gender Pay Gap on the Anniversary of the Lilly Ledbetter Fair Pay Act,” that explores the state of the gender wage gap, the factors that influence it, and policies put forward by the Obama Administration to address it.

3. The President again called on Congress to pass the Paycheck Fairness Act, currently pending in both the House and Senate, which would prohibit retaliation of employees who discuss wage information, add compensatory and punitive damages to the list of remedies available under the Equal Pay Act, clarify the employer affirmative defense that the pay differential is based on a “factor other than sex,” and define when employees are considered to be working in the same “establishment” under the law.

4. The White House also committed to hosting a summit on “The United State of Women” on May 23, 2016 to honor the progress made toward gender equality and to discuss solutions to the challenges still faced by women and girls.

These actions build on the Obama Administration’s 2014 activities, where President Obama signed an Executive Order banning federal contractors from retaliating against an employee for disclosing or discussing compensation information, and the Department of Labor published a similar rule regarding collecting of wage data. The new EEOC proposal should be completed in 2016, with the first employer reports due in September 2017.

 

* Correia & Puth associate Lauren Khouri also posted this piece on Yale University’s Journal on Regulation and the ABA Section of Administrative Law blog.

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