JANUARY 2021 | FACT SHEET
Nearly sixty years ago, President Kennedy signed the Equal Pay Act (EPA) into law, making it illegal for
employers to pay unequal wages to men and women who perform substantially equal work. At the time
of the EPA’s passage in 1963, women made merely 59 cents to every dollar made by men. Although
enforcement of the EPA as well as other civil rights laws has helped to narrow the wage gap, signiicant
disparities remain and need to be addressed. Today, women typically make only 82 cents for every dollar
earned by men. This wage gap varies by race and is far larger for many women of color: Black women
working full time, year round typically make only 63 cents, Native American women only 60 cents, and
Latinas only 55 cents, for every dollar paid to their white, non-Hispanic male counterparts. While Asian
American and Paciic Islander (AAPI) women make 87 cents for every dollar paid to white, non-Hispanic
men, women from many AAPI communities experience drastically wider pay gaps.
Lost earnings due to a stagnant gender wage gap are exacerbating the economic and health
consequences of the COVID-19 pandemic for Black and brown women — and for the families who depend
on their income. The COVID-19 pandemic has exposed how the work performed primarily by women, and
particularly Black and brown women, has long been and continues to be undervalued, even as the rest
of the country is depending on it. Black women, Latinas, and other women of color are especially likely
to be on the front lines of the crisis, in jobs from personal care and home health aides to grocery store
cashiers to child care workers. They are also overrepresented in low-wage occupations and many of the
occupations feeling the brunt of COVID-related job loss. These lost earnings not only leave Black and
brown women without a inancial cushion to weather the current crisis, they also make it harder for them
to build wealth, contributing to the racial wealth gap and barriers to economic prosperity.
The Paycheck Fairness Act (S. ___, H.R. __) would update and strengthen the EPA in important ways,
including:
Protecting Employees from Retaliation for Discussing Pay
You can’t ight pay discrimination if you have no idea whether you are making less than the man across the
hall. Employees need robust legal protections so they can talk about how much they make without fear of
retaliation from their employer. The Paycheck Fairness Act prohibits employers from punishing employees
How the Paycheck Fairness Act Will
Strengthen the Equal Pay Act
for sharing pay information with their coworkers, and makes
clear that employees cannot contract away or waive their
rights to discuss and disclose pay. As a result, employees
will be better able to learn about pay disparities and to
evaluate whether they are experiencing pay discrimination.
Closing a Loophole in the Employer
Defense
Under the EPA, when an employer is found to be paying
female employees less than male employees for equal
work, the employer may assert an airmative defense that
the pay dierential is based on a “factor other than sex.”
Some courts have interpreted this airmative defense so
broadly that factors such as a male worker’s stronger salary
negotiation skills or higher previous salary qualify, even
if these factors themselves may be “based on sex.” The
Paycheck Fairness Act tightens this airmative defense so
that it can excuse a pay dierential for men and women only
where the employer can show that the dierential is truly
caused by something other than sex and is related to job
performance and consistent with business necessity, and
accounts for the entirety of the pay dierential.
Limiting the Use of Wage History in the
Hiring Process
The Paycheck Fairness Act prohibits employers from relying
on a prospective employee’s wage history, so that pay
discrimination and disparities will no longer follow women
and people of color from job to job. The Paycheck Fairness
Act prohibits an employer from screening applicants based
on their wage history. An employer may only rely on wage
history to determine compensation if the prospective
employee voluntarily oers the wage history after an oer
of employment with compensation has been made. In
addition, the prospective employer may verify wage history
with a current or former employer only if the prospective
employee volunteers wage history in order to negotiate for a
higher wage.
Modifying the “Establishment”
Requirement
The Paycheck Fairness Act prevents an employer from
paying a male employee more than a female employee who
is doing the same job for the employer on the other side of
town—because a few miles’ distance is no justiication for
pay discrimination. Under the EPA, in order to determine
that there is wage discrimination, a wage comparison
must be made between employees working at the same
“establishment.” Some courts have interpreted this to mean
that wages paid in dierent facilities or oices of the same
employer cannot be compared. The Paycheck Fairness
Act clariies that comparisons may be made between
employees in workplaces in the same county or similar
political subdivision as well as between broader groups of
workplaces in some commonsense circumstances.
Improving Equal Pay Act Remedies
It shouldn’t pay to discriminate. Weak remedies for
pay discrimination mean that employers can come out
ahead by gambling that they won’t get caught, but the
Paycheck Fairness Act will incentivize employers to stop
pay discrimination before it happens, by toughening the
remedy provisions of the EPA. The Paycheck Fairness Act
will allow prevailing plaintis to recover compensatory
and punitive damages. The EPA currently provides only
for liquidated damages and back pay awards, which tend
to be insubstantial. The change would put gender-based
wage discrimination on an equal footing with discrimination
based on race or ethnicity, for which full compensatory and
punitive damages are already available. When a woman
is paid less than a man for doing the same work, she is
getting a second-class salary. The law should no longer
add insult to injury by giving her a second-class remedy for
discrimination as well.
Facilitating Class Action Equal Pay Act
Claims
The Paycheck Fairness Act ensures that women can come
together to challenge an employer’s company-wide pay
discrimination in court, allowing an EPA lawsuit to proceed
as a class action in conformity with the Federal Rules of
Civil Procedure (FRCP). Class actions are important because
they ensure that relief will be provided to all those who are
injured by the unlawful practice. Currently, it is very diicult
to bring EPA suits as class actions because the EPA, adopted
prior to the current federal class action rule, requires
plaintis to opt in to a suit. Under the Paycheck Fairness
Act, class members are automatically considered part of the
class until they choose to opt out of the class, consistent
with the FRCP.
Requiring Collection of Pay Information
by the EEOC
Working women can’t end pay discrimination on their
own—and they shouldn’t have to. The Paycheck Fairness
Act ensures that the EEOC will continue to have the tools it
needs to eectively enforce laws against pay discrimination
by requiring the EEOC to collect compensation and other
employment-related data from employers, as analyzed by
race, sex, and ethnicity of employees.
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Reinstating Pay Equity Programs and
Enforcement at the Department of
Labor
The Paycheck Fairness Act also gives the Department
of Labor the tools it needs to identify and target pay
discrimination. It would reinstate the collection of gender-
based data in the Current Employment Statistics survey
and sets standards for conducting systematic wage
discrimination analyses by the Department of Labor agency
that oversees the nondiscrimination and airmative action
obligations of federal contractors. The Paycheck Fairness
Act also ensures the Department of Labor will collect
information on compensation, a vital tool for detecting
discrimination.
Requiring Research, Education, and
Outreach to Address Pay Disparities
Among Women and Girls of Color
The Paycheck Fairness Act directs the Department of Labor
to conduct research, outreach, and educational programs
to eliminate pay disparities for women and girls of color
(including in the teenage labor force).
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