When are pay differentials between men and women lawful under the Equal Pay Act?
The Equal Pay Act permits pay differentials when they are based on a bona fide seniority system, merit system, incentive system (in terms of quality or quantity of production), or any other factor other than sex. These are known as “affirmative defenses” and it is the employer’s burden to prove that they apply. How do you evaluate seniority, merit, and incentive systems? They must be bona fide systems. This means that the system was not adopted with discriminatory intent; is an established system containing predetermined criteria for measuring seniority, merit, or productivity; has been communicated to employees; and has been consistently and even-handedly applied to employees of both sexes. And of course the system must in fact be the basis for the compensation differential. What are common “factors other than sex” that can be defenses under the Equal Pay Act? Examples include employees’ job-related education, experience, training, and ability; shift differentials; job classification
