It is unlawful to pay employees less to do the same job simply based on the employees’ race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), or national origin. Often times, our team of attorneys hear from employees reporting that “I’m Black and being paid less for the same job than White workers,” or “the company that I work for pays men more than woman for the same position.” In today’s blog, we break down different legal avenues to bring claims for equal pay violation against your employer using a recent case out of the United States Court of Appeals for the Eleventh Circuit as an example.
Dolores Calicchio was the Chief Human Resources Officer at Oasis, a payroll company acquired by Paychex (another payroll company) in 2018. In Calicchio v. Oasis Outsourcing Grp. Holdings, L.P., No. 21-12854, 2022 WL 2761720, (11th Cir. July 15, 2022), she sued her employer for sex/gender discrimination and retaliation citing the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964. Specifically, she cited pay discrimination on the basis of sex/gender under the EPA and sex/gender discrimination and retaliation under Title VII. (Best Law Read: What Are Some Examples of Gender Discrimination in the Workplace?; What Are Examples of Unlawful Retaliation at Work?).
In this new opinion by the federal United States Court of Appeals for the Eleventh Circuit, we saw that Ms. Calicchio was unfortunately unable to prove her claims unequal pay, discrimination, and retaliation, but the decision provides great information to apply moving forward.
Title VII is a fairly well-known anti-discrimination law but what is the EPA? And how is it different than Title VII? There is overlap between the two, but they do have differences too. Ultimately, both laws were meant to help prevent discrimination in the workplace, though they are different in where they focus. Let’s break it down a bit.
Does Title VII protect employees from discriminatory pay practices?
Best Employment Discrimination Lawyer Answer: Yes. On the whole, the Civil Rights Acts are a series of laws that the US federal government has passed in order to prevent discrimination against classes of marginalized people. It protects rights ranging from housing to voting to employment. It follows a series of other Civil Rights Acts from the federal government dating back to 1866 (which officially granted citizenship to people who were previously enslaved in the United States), but as we’re an employment law firm, we of course must focus on the employment aspects.
Title VII of the Civil Rights Act is the section of the law that covers employment. It makes discrimination against people for their race, color, religion, sex/gender, and national origin (where they were born) illegal in the workplace. It has been amended to include pregnancy (via the Pregnancy Discrimination Act), age (via the Age Discrimination in Employment Act), and disability (via the Americans with Disabilities Act), and was expanded to cover LGBTQ+ workers via the Bostock v. Clayton County case. It also covers retaliation under those various laws too.
In order to bring a case for discrimination and/or retaliation under Title VII, you must first file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the adverse employment action (or 300 days, depending on the state). You should file with the EEOC as early as possible and with an attorney’s help to be sure you cover all of your claims. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge). After the EEOC investigates and issues the Right to Sue letter, an employee can then sue their employer in court.
Title VII, in the absence of direct evidence, uses something call the McDonnell-Douglas burden shifting framework when it comes to making legal arguments in discrimination and retaliation cases. (Best Law Read: How do you Win a Discrimination at Work Lawsuit?). The employee (plaintiff) must first establish the prima facie case of discrimination. The burden of proof rests with the employee at this stage. Then after asserting the prima facie case, the employer (defendant) must articulate a legitimate, nondiscriminatory reason for the adverse employment action against the employee. (Best Law Read: What Does Prima Facie Mean?; What Constitutes An Adverse Employment Action Under Title VII?).
After the employer asserts the legitimate reason, the employee must then prove that that asserted reason is pretext. Pretext is the legal word for “BS.” Note, your author would have chosen a different word, but felt it might be right to tone down for this blogpost. (Best Law Read: Employment Discrimination Question: What Is Pretext?).
How does the Equal Pay Act work?
Best Pay Discrimination Attorney Answer: The EPA does not cover all retaliation (nor all discrimination) in the workplace. But it does cover unfair pay discrimination (Best Law Read: What is Pay Discrimination?). While the EPA is under the realm of civil rights laws, it is not actually part of the Civil Rights Acts. Rather, it’s part of the Fair Labor Standards Act (“FLSA”), which governs minimum wage and overtime issues for most employees (see generally, Ohio Overtime Wage Information and Ohio Minimum Wage Information). The EPA covers only these sorts of discrimination and retaliation issues related to pay. If the discrimination or retaliation is not pay-related, the EPA won’t be relevant. Notably, the EPA also only covers pay discrimination on the basis of sex/gender and does not independently protect other protected classes such as race and national orientation. However, pay discrimination based on sexual orientation, gender identity, and pregnancy should be protected as well since these claims fall under the gender discrimination umbrella.
In order to bring a case for pay discrimination under the EPA, one can file directly into court within two years of the discriminatory pay issues, which is in line with the normal FLSA deadlines (except for “willful violations,” which extend the deadline to three years). Basically every unequal pay claim is worth asserting, even those where the pay gap is seemingly small (see, Is My Unequal Pay Claim Worth it? Yes).
Similar to Title VII, the EPA also uses a burden-shifting framework for its legal arguments. In order to show the prima facie case for an EPA violation, an employee must show that “the employer paid employees of opposite genders different wages for equal work for jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003) (quotation marks omitted). Calicchio, at *2. The work must be “substantially similar” between the relevant jobs/employees, and the burden of proof is “fairly strict[.]” Id. The focus in EPA claims is on the job itself – the essential job functions must be the same, though the incidental work need not be. After the employee proves the prima facie case, the employer must “must show that the factor of sex provided no basis for the wage differential.” Id. (emphasis in original). The employer can do so by asserting one or more of four options: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any factor other than sex.” Id. After, the burden shifts back to the employee to show that the reason cited was pretext, again similar to Title VII claims.
What are the biggest differences between Title VII and the EPA?
Best Pay Rights Lawyer Answer: While there is a lot of overlap between Title VII and the EPA, there are also quite a few differences too. Quoting the Court in Calicchio, “Title VII and the EPA have different burdens of proof. ‘A plaintiff [employee] bringing an EPA claim must meet the fairly strict standard of proving that she performed substantially similar work for less pay,’ but need not show discriminatory intent. Miranda, 975 F.2d at 1526. Under Title VII, ‘there is a relaxed standard of similarity between male and female-occupied jobs, but a plaintiff [employee] has the burden of proving an intent to discriminate on the basis of sex.’ Id. Calicchio, at *3.
Title VII also has more expansive coverage of people than the EPA. Title VII protects people for their race, color, religion, sex/gender, and national origin. The EPA only covers unfair pay claims with a sex/gender basis. While unfair pay based on protected classes is still illegal under Title VII, the EPA only officially covers sex/gender.
Finally, Title VII claims require “exhaustion of administrative remedies” (i.e., they require you to go through an EEOC or state government-equivalent agency investigation) before you can sue; and have a shorter statute of limitation. Claims asserted under the EPA do not have to go through the EEOC – you can sue immediately for these sorts of wage violations – and have the longer two year statute of limitations.
How do I find an attorney to help me file an EPA or Title VII Claim?
Best Employee’s Law Firm Answer: If you are searching “how do I find a lawyer to sue for sex/gender discrimination?” or “What should I do if my manager is discriminating against me by paying me less based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Raleigh, and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
This wage discrimination and employment law website is an advertisement. The materials available at the top of this equal pay page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I find the top employment lawyer near me to sue for wage discrimination on my job”, “What can I do if the company I work for pays women less,” or “My manager refuses to pay me the same as a man even though I do the same job better and am more qualified”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.