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Equal Pay Act: Men Can Be Paid More Than Women In Certain Circumstances

by | Mar 24, 2023 | Employment Discrimination, Employment Law, Equal Pay Act Claims, Federal Law Update, Gender Discrimination |

How do employees prove an Equal Pay Act violation?

The Equal Pay Act (“EPA”) requires that employers provide equal pay for equal work regardless of gender. To prove a violation of this act, an employee must present evidence that if believed proves by a preponderance of the evidence that: (1) they are being paid less than someone of the opposite sex; and (2) the employees being paid more are performing substantially similar work under similar conditions.

One landmark case that illustrates this is Corning Glass Works v. Brennan, 417 U.S. 188 (1974). In this case, female employees were being paid less than male employees for performing the same job. The United States Supreme Court held that the EPA requires that jobs be evaluated based on the skill, effort, and responsibility required, rather than on job titles or descriptions. The Court also held that the EPA requires that employees be paid equally for substantially similar work, even if the jobs have different titles or are in different departments.

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What defenses to employers have to an Equal Pay Act claim?

Employers have four affirmative defenses available to them that can be used to defend against an EPA claim. These affirmative defenses are:

  1. Seniority: An employer can use the seniority system as a defense if pay differences are based on length of service.
  2. Merit: An employer can use the merit system as a defense if pay differences are based on an employee’s qualifications, skills, or job performance.
  3. Quantity or Quality of Production: An employer can use the quantity or quality of production defense if pay differences are based on the quantity or quality of work performed.
  4. Any other factor other than gender: An employer can use the catch-all defense that pay differences are based on any factor other than gender, as long as the factor is job-related and consistent with business necessity. Examples of such factors may include education, experience, training, or geographic location.

Importantly, the employer has the burden of proof for establishing an affirmative defense. An employer must show that the pay differences were due to one of these four affirmative defenses and that there was a legitimate business reason for the difference in pay. If the employment proved the initial elements and the employer fails to prove any of the affirmative defenses, the employer will be found to be in violation of the EPA. Employees do not have to prove pretext like they would in a Title VII of the Civil Rights Act of 1964 claim for employment discrimination.

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What is an example of when men can be paid more than women?

In Basting v. San Francisco Bay Area Rapid Transit Dist., No. 22-15556, 2023 WL 2445695 (9th Cir. Mar. 10, 2023), Karen Basting worked for Bay Area Rapid Transit (“BART”). It was undisputed that Basting was paid less than two other men in her department doing the same job. Nonetheless, the United States Court of Appeals for the Ninth Circuit held that the employer met its burden to prove an affirmative defense:

The record confirms that Basting was paid less than the men in her department on whom she bases her prima facie case due solely to a factor other than sex: she had not been in her role for at least two years. After BART hired a consultant to advise BART on how to make its non-union salaries more competitive, the consultant recommended across-the-board pay bumps for non-union employees who had been in their role at BART for at least two years—the period of time the consultant viewed as a good proxy for proficiency in a job. BART adopted the consultant’s recommendations, giving the across-the-board pay bump for all non-union employees who had been in their job for at least two years at the time of the pay bump. Basting had not been in her job for at least two years when the pay bump was implemented, so she did not receive the pay bump. But the other three non-union employees who held jobs similar to Basting’s (including two men) had been in their roles for at least two years, so they did receive the pay bump.2 The difference in pay between Basting and her male colleagues thus hinged exclusively on a job-related reason other than sex: proficiency in the job as measured by time in the job.

Id. at *1.

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What should I do if I find out that men are being paid more than women for doing the same job where I work?

In addition to gathering any documentations, such as pay stubs, tax documents, and emails, you need to contact an employee’s rights lawyer to directly evaluate your potential claims and advise you what to do next. Thus, 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; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky 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 unequal pay and gender discrimination law website is an advertisement. The equal pay act materials available at the top of this page and at this employee’s law firm website are only intended to give informal information and not should not be viewed as direct legal advice. Thus, it would be best for to contact our top attorneys 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.

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