Minding the Pay Gap:
What Employers Need
to Know as Pay Equity
Protections Widen
Fueled by ingenuity.
Inspired by you.
Author s:
Patricia J. Martin
Denise M. Visconti
Corinn Jackson
August 2019
MINDING THE PAY GAP: WH AT EMPLOYERS NEED TO KNOW AS PAY EQUITY PROTECTIO NS WIDEN
COPYRIGHT ©2019 L ITTLER MENDELSON, P.C. 1
I. Introduction
The pay gap – or paying women and other historically marginalized groups less for the same or
substantially similar work – has increasingly been in the media spotlight. Politicians have also taken note.
While there have been pay discrimination laws on the books at the federal level and in most states for
decades, over the past several years, state and local governments and Puerto Rico have passed numerous
new laws all aimed at closing the pay gap. Since 2016, more than 200 bills addressing pay equity were
introduced in nearly every state. At the time of publication, 13 states have enacted “second wave” pay
equity laws; 24 states and municipalities – along with Puerto Rico – have enacted salary history inquiry
bans; and 19 states have enacted wage transparency provisions. In addition, employers with 100 or more
employees that are subject to Title VII and certain government contractors are now required to report
compensation data to the Equal Employment Opportunity Commission (EEOC) annually.1
While the federal Equal Pay Act prohibits employers from paying employees less for equal work because of
gender, these second wave pay equity laws revise this standard – prohibiting unequal pay for “comparable”
work as opposed to “equal” work. The newly enacted salary history inquiry bans restrict employers’ ability
to inquire into the salary history of applicants. Finally, wage transparency measures prohibit employers
from banning pay disclosure in the workplace or from retaliating against employees who discuss their
wages. Employers must comply with federal law and this growing patchwork of state and local laws.
The plaintis’ bar also has gotten in on the action. Since 2016, over 250 pay equity cases have been filed
in the United States. High profile pay equity cases are in the news frequently – the proposed class and
collective action filed in California federal court by all 28 members of the U.S. Women’s soccer team is just
one example. Law firms and technology companies also have been targets. Indeed, to a large extent, the
cases target professional services organizations and professional positions: lawyers, engineers, professors,
scientists, managers and doctors. In addition to an equal pay claim, these lawsuits frequently include
claims of discrimination, sexual harassment or wrongful termination. These lawsuits have been filed in
state and federal courts across the nation as both single plainti cases and class or collective actions.
This white paper provides a discussion of the nuts and bolts of the various existing pay equity
laws, including:
• the elements a plainti must establish to prove a claim;
• the defenses available to employers;
• the damages available; and
• the procedural mechanisms that allow for these cases to be brought as class or collective
actions – increasing the exposure for employers.
We also provide practical advice to help employers avoid pay inequities. Finally, we provide
recommendations on how employers can seek to remediate pay inequities identified through a
self-audit or otherwise.
II. The Nuts and Bolts of Pay Equity
A. Federal Law
While there has been significant attention to the expanding state and local pay equity laws and their
attendant compliance challenges for and potential lawsuits against employers, state equal pay claims
are frequently brought with an accompanying federal equal pay claim.
1 See Jim Paretti, Davi d Goldstein, and Lan ce Gibbons, Court Ord ers EEOC to Collect Compensa tion Data by September 30, 2 019 Littler ASAP
(Apr. 25, 2019).
