United States of America (USA)

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The Department of Labor’s Women’s Bureau advocates for and conducts research and data analysis on equal pay. Two recent reports funded by the U.S. Department of Labor are the Gender-Based Pay Disparity Study and an Evaluation of the Gender Wage Gap Using Linked Survey and Administrative Data. The Women’s Bureau also maintains an Equal Pay Social Media Toolkit, an interactive map on federal and state-level equal pay and pay transparency protections for workers, and an interactive data tool that compares women’s and men’s median earnings in over 350 occupations.

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a final rule on September 11, 2015, revising its regulations to implement Executive Order 13665, an amendment to Executive Order (E.O.) 11246, which added protections for applicants and employees of federal contractors and subcontractors from discriminatory discipline, including firing, for inquiring about, discussing or disclosing their pay or the pay of their co-workers, subject to certain limitations. E.O. 11246 also prohibits covered Federal contractors and subcontractors from discriminating in employment decisions on the basis of race, colour, religion, sex, sexual orientation, gender identity or national origin. E.O. 11246 applies to Federal contractors and subcontractors and to federally assisted construction contractors and subcontractors, who do over $10,000 in government business in one year. E.O. 11246 also requires covered government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of employment. The regulations became effective on January 11, 2016, and apply to all covered contracts entered into or modified as of that date. Subsequently, on August 15, 2016, OFCCP further amended its Executive Order 11246 implementing regulations when it revised the Sex Discrimination regulations at 41 CFR 60-20; specifically, the “Discriminatory Compensation” provision at 41 CFR 60-20.4. This provision reiterates that compensation may not be based on sex. Contractors may not engage in any employment practice that discriminates in wages, benefits, or any other forms of compensation, or denies access to earnings opportunities, because of sex, on either an individual or systemic basis. Contractors may not pay different compensation to similarly situated employees on the basis of sex; may not grant or deny higher-paying wage rates, salaries, positions, job classifications, work assignments, shifts, development opportunities, or other opportunities on the basis of sex; may not provide or deny earnings opportunities because of sex, for example, by denying women equal opportunity to obtain regular and/or overtime hours, commissions, pay increases, incentive compensation, or any other additions to regular earnings; and may not implement compensation practices that have an adverse impact on the basis of sex and are not shown to be job-related and consistent with business necessity.

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, colour, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labour unions and employment agencies are also covered.

The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

Title VII of the Civil Rights Act of 1964, which prohibits, among other things, sex discrimination (including pregnancy, gender identity, and sexual orientation), applies to discrimination based on sex in pay and benefits. Someone who has an Equal Pay Act claim may also have a claim under Title VII.

The Lilly Ledbetter Fair Pay Act of 2009 states the EEOC’s longstanding position that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began. The Ledbetter Act recognizes the “reality of wage discrimination” and restores “bedrock principles of American law.” Particularly important for the victims of discrimination, the Act contains an explicit retroactivity provision.

People challenging a wide variety of practices that resulted in discriminatory compensation can benefit from the Act’s passage. These practices may include employer decisions about base pay or wages, job classifications, career ladder or other non-competitive promotion denials, tenure denials, and failure to respond to requests for raises.

The Biden Administration is seeking to strengthen protections against pay discrimination by making wage gaps transparent through data collection; helping women (and all workers) organize and bargain collectively; and promoting the passage of legislation that provides protections for wage transparency, bans the use of salary history in salary negotiations, and strengthens the ability of employees to challenge discriminatory pay practices.

In addition, the Administration is seeking to:

• increase pay and benefits for jobs disproportionately filled by women by making sure educators, caregivers, and early childhood educators receive a competitive wage and benefits;

• raise the federal minimum wage; and

• expand the number of workers who qualify for overtime pay.

Membership in the Equal Pay International Coalition (EPIC) is an opportunity to gain new knowledge and understanding about effective strategies to advance equal pay. The U.S. Department of Labor can draw from the rich sources of expertise and experience represented by other EPIC members: ILO member states, non-governmental organizations, trade unions, and businesses. The new knowledge gained through membership in EPIC will support efforts to close the wealth gap between women and men in the United States and around the world. As noted above, the EEOC and the U.S. Department of Labor’s OFCCP enforce national laws and regulations on equal pay, and can benefit from this expertise in their efforts to raise awareness about and enforce legislation related to workers’ rights to equal pay. In addition, the U.S. Department of Labor’s Bureau of International Labor Affairs (ILAB) promotes gender equality in the labour and employment realm internationally, and can apply new knowledge to ILAB’s efforts to advance equal pay around the world.