The Equal Pay Act’s “Factor Other Than Sex” Exception: What Does it Mean?

The Federal Equal Pay Act (EPA) says that women must be paid the same amount as men assuming they do the same or similar work. There are a few exceptions to this, allowing employers to pay women differently (less than) men.

Those exceptions include differences in pay based on any seniority, merit, quality of work, or, most notably, as written in the EPA, “any factor other than sex.”

A Big Exception

As you can imagine that last exception is broad, and undefined, and opens the door to employers to legally pay women less than men for the same job or work. There has been a lot of litigation over what a “factor other than sex” is, but unfortunately, there have been few definitive answers, with courts around the country often giving different results.

Pay Histories

One big factor that many employers try to use is pay history. The logic (to the employers) is that it is not paying a woman less than her male counterpart because she is a woman—the lesser pay is because she earned less in her salary history.

The employer will argue that the policy is gender neutral; it doesn’t matter whether the employee is male or female, because whatever the employee’s sex may be, he or she would get paid less based on the lesser prior salary history.

But many courts, including courts in California, have found this argument to be unpersuasive. Courts have said that all this does is perpetuate discrimination—because women have been paid less than men historically, basing employee pay on pay histories, only perpetuates the differences in pay historically earned by men and women.

In California, you cannot be asked during the interviewing process about your current or past salary.  You can, of course, state what your expectations of salary are or ask what the range of salary pays, or ask what current men are making in the role for which you are applying.

Incentives and Bonuses

Some employers have argued that they need to pay men more money to do what were historically thought of as “women’s jobs.” By paying men more, employers have argued, they are not discriminating, but rather, reacting to market forces that say that a man needs to be paid more to do these kinds of jobs.

But courts have rejected this argument also, saying that discriminatory market forces should not be perpetuated by paying men more. However, courts have also said that paying men more to lure him away from another employer, is an allowable factor other than sex.

Job Related Differences

There is also debate over whether a factor other than sex, must actually be related to the job itself. So, for example, if an employer were to pay men more not because they were men, but because they could lift more, that would disparately impact women, as the average male would be more likely to be able to lift heavier weights than the average female.

In this example, the pay difference based on physical strength may be an illegal practice if the job were secretarial, whereas, if the job involved lifting or moving heavy objects, the difference in pay may be allowable.

Are you being paid fairly at work, and paid for the hours you work? Contact the San Jose employment lawyers at the Costanzo Law Firm today.

Sources:

nwlc.org/wp-content/uploads/2015/08/4.11.11_factor_other_than_sex_fact_sheet_update.pdf

wakeforestlawreview.com/2021/03/the-blurry-limits-of-the-equal-pay-acts-factor-other-than-sex-an-argument-for-limiting-the-use-of-salary-history-and-the-benefit-to-employers/