EQUAL PAY ACT OF 1963
In an effort to end gender-based discrimination
in labor wages, Congress enacted the Equal Pay
Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (cod-
ified at 29 U.S.C.A. § 206(b)). The act estab-
lished the requirement that women should
receive “equal pay for equal work.”However, the
average wages given to women are still lower
than those of men, and some critics have
deemed the Equal Pay Act as a failure.
Congress had attempted on a number of
occasions prior to 1963 to enact similar legisla-
tion. The idea for the statute arose during
WORLD WAR II, when many women entered the
workforce while men were overseas. The War
Labor Board established a policy of “equal pay
for women.” According to its policy, women
were to receive equal pay for work that was of
“comparable quality and quantity” to the
responsibilities of men.When members of Con-
gress introduced legislation called the Women’s
Equal Pay Act of 1945, it contained the phrase “comparable work.” This provision was the sub-
ject of a heated debate, and the bill failed to pass.
In the years that followed World War II,men
reemerged as dominant figures in the workforce
and attempts in Congress to enact an equal pay
law stalled. During the early 1960s, however,
Congress reconsidered the issue. When the
phrase “equal work” was employed instead of
“comparable work,” the legislation garnered suf-
ficient support to be enacted into law. The act
amended the Fair Labor Standard Act of 1938,
29 U.S.C.A. §§ 201-209 (2000).
Congress stated that its intent in enacting
the Equal Pay Act was to establish a “broad char-
ter of women’s rights,” designed to remedy a
“serious and endemic” problem of SEX DISCRIM-
INATION in the workplace. Under the act,
employers are prohibited from discriminating
against women on the basis of sex when women
perform jobs requiring “equal skill, effort, and
responsibility, and which are performed under
similar working conditions” as jobs performed
by men. In order to recover under the act, a
woman must prove that (1) an employer paid
higher wages to men than to women; (2) male
and female employees conduct an equal amount
of work that requires substantially equal skill,
effort, and responsibility; and (3) men and
women performed the work under similar
working conditions.
The act establishes four main defenses for
employers. An employer may pay a male em-
ployee more than a female employee if the
employer can establish that payment is based
upon (1) a seniority system, (2) a merit system,
(3) a system whereby earnings are based upon
the quantity and quality of production by the
employees, or (4) a differential based upon any
other factor other than the sex of the employees.
Although the first three of these defenses have
been the subjects of litigation, the fourth excep-
tion has been litigated more frequently.
Lower federal courts have struggled with the
so-called factor-other-than-sex defense, and the
U.S. Supreme Court has rendered few decisions
on the issue. In Corning Glass Works Co. v. Bren-
nan 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1
(1974), the Court ruled that an employer’s pol-
icy of paying men who worked during a night
shift more than women who worked the same
jobs during the day shift violated the act. The
Court found that the policy was related to gen-
der because the employer knew that women
would work for less money. Three years later, in
City of Los Angeles Department ofWater & Power
v.Manhart, 435 U.S. 702, 98 S. Ct. 7370, 55 L. Ed.
2d 657 (1977), the Court ruled that a policy
requiring women to contribute more to their
PENSION funds than men violated the act. The
employer in the case based its policy on mortal-
ity tables indicating that women had a longer life
span than men, so the women were required to
pay higher rates for their pension funds. Since
this policy was based on gender, the Court ruled
that the employer had violated the act.
Lower federal courts have established a
number of tests to determine whether an
employer has adopted a wage policy based on a
factor other than sex. Some circuits require an
employer to demonstrate a gender-neutral wage
policy that accounts for disparity in wages
between men and women.Other circuits require
an employer to show that the gender-neutral
system of wages is based upon the performance
of a woman’s job duties or that a gender-neutral
system was adopted to serve a legitimate busi-
ness reason.
The application of the act is limited for other
reasons as well. Several courts have noted that
the Equal Pay Act does not establish a system of
“comparable worth,” because the act specifically
applies to “equal work.” EEOC v. Madison Com-
munity Unit School District No. 12, 818 F.2d 577
(7th Cir. 1987). Accordingly, courts must gener-
ally compare the wages of men and women per-
forming the same jobs for the same company
when considering a complaint brought under
the act.
The limitations of the Equal Pay Act has led
a number of commentators to criticize its provi-
sion and the application of the act in the courts.
Many critics note that the wages of women are
still significantly lower than those of men, even
though employers have become more willing to
hire women. In 1997, President BILL CLINTON
declared April 11, 1997 to be the “National Pay
Inequity Awareness Day,” which signified to
these critics that serious problems in pay
