The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission’s website at http://www.eeoc.gov, as well as on Commission case law and court decisions.

Introduction

Multiple federal statutes protect the right of employees to be free from discrimination in compensation, including the Equal Pay Act (EPA) of 1963[2] and Title VII of the Civil Rights Act of 1964 (Title VII),[3] among others.[4] Yet, as President Biden recently declared, “we are still a long way from achieving pay equity in America.”[5] The President continued, stating:

In nearly every job—more than 90 percent of occupations—women are still earning less than men. For every dollar the typical man who works full-time [for a] full year earns in America, a woman earns 82 cents. For [Asian American and Pacific Islander] women, it’s 87 cents for every dollar a white man earns. For Black women, it’s 63 cents. For Native American women, it’s 60 cents. And for Hispanic women, it’s 55 cents.[6]

These statistics show that persistent pay inequity is not solely an issue of sex discrimination, but an intersectional issue that cuts across race, color, national origin, and other protected classes. For example, Section 12 of Executive Order (EO) 14035, Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce, acknowledged that “[m]any workers continue to face racial and gender pay gaps, and pay inequity disproportionately affects women of color.”[7] The COVID-19 pandemic has only amplified pay inequity, particularly among women of color. According to Emily Martin, Vice President for Education and Workplace Justice at the National Women’s Law Center, “Black women, Latinas, and other women continue to be undervalued and underpaid, even as they risk their lives on the front lines of the COVID-19 crisis to keep the country going.”[8] Women of color are also under-represented in the higher-paying STEM fields (Science, Technology, Engineering, and Math), and a 2016 Congressional report found that Hispanic and Black women are more likely than White women to hold jobs with fewer hours and benefits.[9]

While some compensation disparities may be attributable to differences in occupations, skills, experience, and other legitimate factors, the Equal Employment Opportunity Commission (EEOC or Commission) acknowledges that not all disparities can be explained by such factors and that pay inequality may be the result of discrimination.[10] Pay inequity affects individuals in “underserved communities,” defined in Section 2 of EO 14035 as “populations sharing a particular characteristic, as well as geographic communities, who have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life.”[11] These communities include all groups protected under Title VII, the Rehabilitation Act,[12] the Americans with Disabilities Act (ADA),[13] the Age Discrimination in Employment Act (ADEA),[14] and the Genetic Information Nondiscrimination Act (GINA)[15]. They also include first-generation professionals, first generation college students, individuals with limited English proficiency, immigrants, older workers, rural residents, veterans and military spouses, and those adversely affected by persistent poverty.[16]

The federal government is the nation’s largest employer. As a model employer, it must take steps to identify and address pay inequality. By examining specific barriers faced by underserved communities in the federal government workforce, the federal government can take steps to eliminate pay inequality.

Understanding the Interplay Between Title VII and the Equal Pay Act

Most often, pay discrimination claims arise under Title VII or the EPA, or both statutes. The EPA covers sex-based pay discrimination and retaliation, whereas Title VII covers sex-based pay discrimination, as well as pay discrimination on the basis of race, color, religion, national origin, and retaliation.[17] The EPA requires men and women working in the same establishment be given equal pay for equal work—although the jobs being compared need not be identical, they must be substantially equal.[18] In contrast, there is no requirement under Title VII that the jobs be substantially equal. Instead, comparisons can be made between the compensation rates of “similarly situated” employees, a more relaxed standard than the substantially equal work requirement of the EPA.[19] Under the EPA, a plaintiff also does not need to prove that the employer acted with discriminatory intent to obtain relief.[20] However, it is generally more difficult to establish a claim, as an initial matter, under the EPA than it is to establish a prima facie case under Title VII.

If an employee satisfies the relatively stringent standard for establishing a claim at the initial stage under the EPA, then the burden shifts to the employer to prove an affirmative defense, i.e., that the pay differential is justified on a permissible basis, including a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or any factor other than sex.[21] In other words, an employer must prove “not simply that the employer’s proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.”[22] In contrast, in the typical McDonnell-Douglas[23] analysis of a Title VII case, once an employee establishes a prima facie case, the employer merely has a burden of production to articulate a legitimate, non-discriminatory reason for the pay differential.[24] Under Title VII, the ultimate burden of proof remains with the employee who must prove, by preponderant evidence, that the employer’s articulated reason for the pay differential was a pretext for unlawful discrimination.[25]

The Bennett Amendment, a provision in Title VII § 703(h), states that it is not unlawful for employers to differentiate on the basis of sex when determining the amount of wages or compensation paid if the difference is authorized by the EPA.[26] The Commission has interpreted the Bennett Amendment as reconciling the differing standards of proof under the EPA and Title VII, allowing the EPA standards to govern even those wage discrimination cases where only Title VII would otherwise apply.[27] In addition, the Commission has understood the U.S. Supreme Court’s holding in County of Washington v. Gunther[28] to subject Title VII sex-based wage claims to the EPA’s affirmative defenses (merit system, seniority system, a system based on quality or quantity of production, and factors other than sex) for which the employer has the burden of proof.[29] This does not incorporate the EPA’s equal work requirement into Title VII sex-based pay discrimination claims. As a result, once a plaintiff makes out a prima facie case of sex-based pay discrimination under Title VII, the employer has the burden of proving one of four affirmative defenses.[30]

The Commission’s regulations maintain that, when the jurisdictional prerequisites of both the EPA and Title VII are satisfied, a violation of the EPA can also be a violation of Title VII.[31] The regulation further states that Title VII covers types of wage discrimination not actionable under the EPA and thus an act or practice of an employer that is not a violation of the EPA may nevertheless be a violation of Title VII.[32]

To reiterate, compensation discrimination in violation of Title VII can be established even if no member outside of a complainant’s protected class holds an equal, higher paying job. Comparisons can also be made under Title VII between the compensation rates of “similarly situated” employees, even if they are in different establishments, a more relaxed standard than the equal work requirement under the EPA.[33] Therefore, compensation discrimination under Title VII is not restricted to claims in which comparisons are made between jobs in the same establishment. Further, unlike an EPA claim, a Title VII claim can be brought based on an employer’s segregating or classifying protected class workers in lower paying jobs or limiting their opportunities to secure higher paying jobs.[34]

Relief, particularly at the administrative level, is another difference between the EPA and Title VII. Under both the EPA and Title VII, relief can include back pay and a raise.[35] Only the EPA, however, provides for liquidated damages at an amount equal to back pay, unless the employer proves that it acted in “good faith” and had reasonable grounds to believe that its actions did not violate the EPA.[36] If an employer is found to have acted willfully, the EPA provides that back pay may be extend from two years to three years.[37] By comparison, compensatory damages are available under Title VII.[38] The Commission has stated that liquidated damages are “compensatory in nature,” and thus, “in sex-based pay cases under both the EPA and Title VII, [one] cannot obtain both liquidated damages under the EPA and compensatory damages under Title VII for the same injury because that would amount to a double recovery.”[39] Finally, under Title VII (but not under the EPA), attorney’s fees and costs may be awarded.[40]

Intersectionality and “Sex Plus” Discrimination

As noted, collectively, Title VII, the ADEA, the ADA, and the EPA require employers to compensate employees without regard to race, color, religion, sex, national origin, age, or disability. Further, the Commission has recognized that, despite longstanding prohibitions against compensation discrimination, pay disparities persist between workers in various demographic groups.[41] The U.S. Government Accountability Office (GAO) recently reported that, while the overall pay gap between male and female workers in the federal workforce narrowed from 1999 to 2017, the current pay gap is greater for certain groups of workers.[42] GAO further noted that a portion of the pay gap may be due to factors that cannot be measured such as discrimination.[43] The Commission has also acknowledged that while some compensation disparities are attributable to differences in occupations, skills, experience, and other legitimate reasons, not all disparities can be explained by such factors.[44]

The Commission recognizes that certain protected bases overlap, and negative stereotypes and biases may be directed at more than one protected basis at a time.[45] For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men.[46] Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions even in the absence of discrimination against Asian American men or White women.[47] The law also prohibits employers from discriminating against employees because of the intersection of a protected basis under Title VII, for example race or sex, and a trait covered by another EEO statute, such as disability or age.[48]

The anti-discrimination statutes often overlap in cases of pay discrimination. For example, the EPA requires that equal wages be paid to men and women who perform jobs under similar working conditions, and that require substantially equal skill, effort, and responsibilities.[49] In addition, Title VII broadly prohibits discriminatory compensation practices against one protected basis, such as sex, or the intersection of two or more protected bases, such as sex and race.[50] Therefore, pay discrimination claims that raise more than one protected basis can be brought under Title VII, the ADEA, and/or the ADA.

The terms “sex-plus” discrimination and “intersectionality” are not synonymous and are often incorrectly discussed interchangeably. “Sex-plus” discrimination recognizes that an employer may discriminate on the basis of sex and another characteristic not included in the anti-discrimination statutes, such as parental or marital status. “Intersectionality,” or “intersectional discrimination,” as recognized by the Commission, refers to discrimination that occurs because of the connection (or intersection) of two or more protected bases.[51] For example, national origin discrimination often overlaps with other forms of discrimination such as race, color, or religious discrimination.[52] Thus, a person could challenge discrimination based on a combination of protected bases that are inseparable, such as both national origin and religion.[53] This is often referred to as “intersectional discrimination theory” or “intersectionality.”

“Sex-plus” discrimination, was first recognized by the U.S. Supreme Court in Phillips v. Martin Marietta Corporation[54] when it found that, absent a bona fide occupational qualification, it would be discriminatory for an employer to have a different hiring policy for women with young children than for men with young children.[55] While Title VII does not prohibit discrimination against people with young children as a class, the Court recognized that discrimination against only women (and not men) with young children was a form of sex discrimination.[56] This was true even though the majority of individuals hired for the position were women.[57]

Furthermore, in Connecticut v. Teal,[58] the Supreme Court stated that Congress clearly did not intend for Title VII to allow employers to discriminate against some employees on the basis of race or sex merely because the employer favorably treated other members of that group. In other words, fairness to women employees as a whole cannot justify unfairness to an individual female employee.[59] According to the Court, Title VII does not permit a victim of a facially discriminatory policy to be told that they were not wronged because other persons of their race or sex were not subjected to discrimination.[60]

Recently, the Supreme Court noted, when discussing causation in Bostock v. Clayton County, Georgia,[61] that Congress, rather than taking a narrow approach to coverage under Title VII, chose to include broader language. Specifically, Title VII does not allow an employer’s actions to violate the statute when the actions are “solely” or “primarily” due to sex or another prohibited factor.[62] Instead, individuals can prevail in a Title VII action by showing that a trait such as sex was a “motivating factor” in the employer’s challenged employment practice.[63] As such, liability can arise even if sex or a protected basis was not a “but-for” cause of the employer’s action.[64] This is because Title VII protects individuals from discrimination, not groups of individuals as a whole.[65]

In discussing the “sex plus” theory in these three decisions, the Supreme Court acknowledged that discrimination is often based not solely on one statutorily protected basis, but on an individual’s membership in two or more protected groups. Specifically, the Court noted that adverse treatment of a woman because she is a female with an additional characteristic is discriminatory even if the employer does not discriminate against all females.[66] As such, the “sex-plus” or the intersectional discrimination theory should be considered when an individual alleges pay discrimination based on sex combined with another protected basis such as race or age.

While not all federal courts have applied the “sex plus” or intersectional discrimination theory, several federal courts have recognized these theories in cases of employment discrimination. For example, the Seventh Circuit invalidated an employer’s policy of requiring female flight attendants, but not male flight attendants, to be unmarried in Sprogis v. United Air Lines, Inc.,[67] holding that the effect of Title VII is not to be diluted because discrimination adversely affects only a portion of the protected class. The Ninth Circuit noted, in Lam v. University of Hawaii.[68] that where two bases of discrimination exist, they cannot be neatly reduced to distinct components, because bisecting a person’s identities at the intersection of race and gender often distorts or ignores their experience.

In addition, the Fifth Circuit analogized the case of Jefferies v. Harris County Community Action Association,[69] in which the plaintiff was Black and female, to a case of sex-plus discrimination. The plaintiff alleged that her employer discriminated against her based on race and sex when the employer failed to promote her and terminated her employment.[70] Notably, the Fifth Circuit agreed with the plaintiff that the District Court failed to address her claim of discrimination on the basis of race and sex.[71] The Court emphasized that an employer cannot escape liability for discriminating against Black women just because there is an “absence of discrimination against [B]lack men or [W]hite women.”[72] In fact the Court noted that considering both Black men and White women to be within the same protected class as Black females would leave Black women without a viable remedy under Title VII.[73]

Recently, the Tenth Circuit held in Frappied v. Affinity Gaming Black Hawk, LLC,[74] that intersectional claims are cognizable under Title VII. The plaintiff in this case alleged sex and age discrimination, and the Court recognized that the claim was not based on a combination of protected characteristics set forth in Title VII. Instead, the “plus” characteristic (age) was a protected class under another statute, the ADEA. Nevertheless, the Court found ample precedent holding that Title VII forbids “sex-plus” discrimination in cases in which the “plus” characteristic is not protected under that statute.[75] The Court further concluded that a plaintiff alleging “sex plus” discrimination does not need to show that her employer discriminated against her entire subclass of women, only that she herself was discriminated against at least in part because of her sex.[76] The Court noted that research shows older women are subjected to unique discrimination resulting from sex stereotyping, and that recognizing claims of intersectional discrimination best meets congressional intent to prohibit discrimination based on these stereotypes.[77]

The Commission has also recognized that Title VII provides protection against discrimination based on an intersection of two or more protected bases. In Wade v. U.S. Postal Service,[78] the Commission found that the Administrative Judge improperly addressed sex and race claims separately, when Complainant was raising a claim of “sex plus” discrimination. In other words, Complainant alleged she was treated less fairly because she is an African-American female. The Commission has also affirmed the Administrative Judges’ findings of sex-plus-age discrimination in cases of non-selection.[79]

Although the concepts of sex-plus discrimination and intersectionality have been applied by the U.S. Supreme Court, multiple federal courts, and the Commission, pay inequality continues to be an issue in the workplace, especially for women of color. Women of all races and ethnicities face a pay gap when compared with men of similar race and ethnicity, but women of color are affected both because of their gender and their race.[80] Furthermore, while earnings of women of color compare more favorably to earnings of men in their same race, women of color earn far less when compared to White men.[81]

Barriers to Equal Pay in the Federal Government Workforce

In 2010, the Commission assembled a workgroup to identify “obstacles that remain in the federal workplace that hinder equal employment opportunities for African Americans.”[82] The workgroup identified seven key obstacles that hindered equal opportunity in employment: (1) unconscious biases and perceptions about African Americans; (2) lack of mentoring and networking opportunities for higher level positions; (3) insufficient training and developmental assignments; (4) use of narrow recruitment methods; (5) the perception of widespread inequality among African Americans in the workforce; (6) educational requirements; and (7) EEO regulations, laws and policies were not often adhered to and enforced.[83]

A second workgroup that year also identified challenges faced by women in the federal workplace.[84] Six key obstacles were identified: (1) inflexible workplace policies created challenges for women with caregiver obligations; (2) higher level and management positions remained harder to obtain for women; (3) women are underrepresented in science, technology, engineering, and mathematics (STEM) fields in the federal sector; (4) women and men do not earn the same average salary in the federal government; (5) unconscious gender biases and stereotypical perceptions about women still play a significant role in employment decisions in the federal sector; and (6) the perception that federal agencies lack commitment to achieving equal opportunities for women.[85]

Data on the General Schedule (GS) and equivalent pay band levels of Federal government workers show that, generally, as GS-levels and pay bands increased, underrepresented populations decreased.[86] In 2018, women accounted for about 61% of lower paying GS-1 through GS-6 positions, while men held approximately 39% of these positions.[87] Data revealed similar underrepresentation in managerial positions (GS-12 through Senior Executive Service), with women holding only 33% of those positions.[88] While this inequality does not automatically violate the law, employers should be mindful not to limit the employment opportunities of women.[89] As noted by the Commission:

The focus should be on whether women are hired into job [categories] on a nondiscriminatory basis, and whether women are treated equally in promotions and transfers. In addition, performance appraisals, procedures for assigning work, and training opportunities must be nondiscriminatory. If any of these employer practices are discriminatory, they violate the law in their own right, in addition to affecting employee compensation.[90]

In addition, when analyzing compensation discrimination in underserved communities, it is important to consider that barriers to equal pay may exist in a number of forms, such as:

• An employer pays employees in a protected class less than similarly situated employees outside the protected class, and the employer's explanation (if any) does not satisfactorily account for the differential;
• An employer maintains a compensation policy or practice that is neutral on its face, but has a disparate impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity;
• An employer sets the pay for jobs predominantly held by protected class members below that suggested by the employer's job evaluation study, while the pay for jobs predominantly held by employees outside the protected class is consistent with the level suggested by the job evaluation study;
• A discriminatory compensation system has been discontinued, but salary disparities caused by the system have not been eradicated; or
• The compensation of one or more employees in a protected class is artificially depressed because of a discriminatory employer practice that affects compensation, such as steering employees in a protected class to lower paid jobs than persons outside the class, or discriminating in promotions, performance appraisals, procedures for assigning work, or training opportunities.[91]

Access to hiring, promotions, and training may also present barriers to equal pay. In a sample of fiscal year (FY) 2021 Commission findings of discrimination related to promotion and hiring, five of the eleven cases found a violation of the Rehabilitation Act, three found sex discrimination, two found race discrimination, and one found a violation of the ADEA. Two of these cases involve more than one protected basis.[92]

For example, in Claude A. v. Department of Veterans Affairs,[93] the Commission affirmed a finding of discrimination when the Complainant’s joboffer was rescinded, and his police officer duties suspended as a result of disability discrimination (physical/mental). The Commission determined that the Agency failed to perform an individualized assessment and failed to show that the Complainant would pose a direct threat because of his condition.

In Glenna D. v. Department of the Air Force,[94] the Commission affirmed a finding of discrimination based on race when the Complainant, an AfricanAmerican female, performed higher graded duties but was not paid at that level. While the Agency provided “core documents” for GS-12 and GS-13 level positions, the Commission found those to be of limited value because both were interdisciplinary in nature and applied to a wide variety of positions. Furthermore, an Agency supervisor stated that there was very little difference between the two levels, and the Commission found that the record supported the Administrative Judge’s finding that there was no practical difference between the Complainant’s workload before and after her promotion to the GS-13 level. There was also no notable change with respect to the Complainant’s level of supervision despite management’s statement to the contrary.

In Bart M. v. Department of the Interior,[95] the Commission found that the Complainant was subjected to discrimination based upon his sex (sexual orientation) when he was not selected for an Assistant Fire Operations Supervisor position. The Agency argued that based on the Complainant’s references he was not selected for a second interview. Complainant maintained however, that none of the references listed on his application had been contacted. The Commission found that the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination. Specifically, it was not until the Complainant was ranked as the number one candidate that the pool was increased. The record showed that the Complainant had more experience than several of the candidates afforded a second interview. Moreover, the Agency deviated from standard procedure without explanation, weighing the references more than the scores from the first-round interview and the review of the application materials combined. Finally, the negative comments regarding the Complainant were made by supervisors on the panel, but their comments were not supported by the Complainant’s positive performance evaluations.

In Derrick T. v. Department of Justice,[96] the Commission found that the Complainant was subjected to discrimination based on his sex (male) and age (48) when he was not selected to serve as Acting Judicial Security Inspector. The Agency argued that the Complainant was not selected because he did not have the proper experience or certification. A young woman was selected for the position instead. The Complainant demonstrated that the Agency’s reasons for his non-selection were pretext for discrimination, as he had in fact previously acted in the position and the certification was not required.

In sum, based on compensation data and recent Commission findings of discrimination, individuals from underserved communities still face barriers to equal employment and pay in the Federal government workforce.

Recent Pay Equity Initiatives and Next Steps

A recent legislative effort, the Paycheck Fairness Act (PFA) (H.R. 7), would amend the EPA by expanding the definition of “establishment” so that an employee can find a comparator for the same employee at any workplace in the same county or similar political subdivision of a state.[97] This expanded definition would not render the equal work requirement under the EPA identical to the similarly situated standard under Title VII, but it would make these standards more consistent with one another. The PFA would also require an employer’s affirmative defense of “any other factor other than sex” be related to the job in question and consistent with business necessity.[98] In addition, the PFA would amend the EPA to make compensatory damages available, as they are under Title VII.[99]

Additionally, the PFA would prohibit employers from relying on or seeking a prospective employee’s salary history to determine wages.[100] An employer would only be able to rely on the prior wage if the prospective employee voluntarily provides that information after the employer makes an employment offer with compensation.[101] Similarly, an employer would only be able to seek a prospective employee’s salary history to confirm prior wage information if volunteered after an employment offer.[102]

On April 15, 2021, the PFA passed the U.S. House of Representatives. However, a motion to end debate on the PFA failed by a vote of 50-49 in the Senate on June 8, 2021.[103]

While the status of the PFA may remain indeterminate, President Biden has taken definitive action to address pay equity in the federal government. On June 25, 2021, the President issued EO 14035, Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce, which includes strong measures aimed at achieving pay equity in the federal workforce.[104] These measures, set forth at Section 12 of the EO, include the Director of the Office of Personnel Management (OPM) reviewing Government-wide regulations and guidance to address any pay inequities and advance equal pay.[105] This review could lead to revisions of job classification and compensation practices, as appropriate.[106] Notably, the review will assess whether to prohibit agencies from seeking or relying on salary history unless the applicant or employee volunteers that information.[107] This treatment of salary history would be similar to that included in the PFA.

The PFA House Report explained that reliance on salary history perpetuates historic discrimination, and gender and racial wage gaps. Although asking for prior salary history has long been a routine part of the hiring process, salary history is not an objective factor because it assumes that prior salaries were fairly established in the first place.[108] Using salary histories, which may have been tainted by bias, means that discriminatory pay follows workers wherever they go.[109]

The PFA House Report cited EEOC’s Compliance Manual, which states that “[p]rior salary cannot, by itself, justify a compensation [disparity] … because prior salaries of job candidates can reflect sex-based compensation discrimination.”[110] The PFA House Report also stressed that “[g]ender based discrimination in pay is further compounded by race for women of color” and that “[r]ecent research shows that state salary history bans are helping to narrow [these] wage gaps, including increasing employer transparency when it comes to pay.”[111]

Treatment of salary history as contemplated under E.O. 14035 could have a profound impact on pay equity in the United States. The PFA House Report observed that salary history bans have resulted in higher wages, specifically an average increase of 8% for women and 13% for African Americans compared to control groups.[112] So far, 15 states, Puerto Rico, and at least 17 cities or counties have enacted salary history bans. Recent research suggests these efforts are working, as Black and female candidates who took new jobs in states with a ban appear to have achieved notable pay increases.”[113] Thus relying on a job candidate’s skills and abilities (rather than prior pay) reduces discrimination in the hiring and pay decision process.”[114]

The Courts have also addressed the problem of salary history. In Rizo v. Yovino,[115] the plaintiff, a math consultant, filed suit against her employer under the EPA, Title VII, and other laws, when she learned that she was being paid significantly less than her male colleagues though she had more education and experience. The employer did not challenge that the math consultant was paid less than her male colleagues or that she had established her initial burden under the EPA. Rather, the employer argued the affirmative defense of “a factor other than sex,” that the employee’s pay was the result of a pay policy based solely on its employees’ prior pay.

The U.S. Court of Appeals for the Ninth Circuit first determined that the EPA’s affirmative defense of “any other factor other than sex” is limited to job-related factors. Next, the Ninth Circuit analyzed whether prior pay qualifies as a job-related factor sufficient to establish the affirmative defense of “any other factor other than sex.” The Court held that prior pay for a different job is not a job-related factor under the EPA and did not qualify as “any factor other than sex.” The Court stated that the “history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex.”[116] The Ninth Circuit, in contrast to the EEOC and some other Courts of Appeal, clarified that prior pay, alone or in combination with other factors, cannot serve as an affirmative defense.[117]

Furthermore, the Ninth Circuit held that “allowing prior pay to serve as an affirmative defense would frustrate the EPA’s purpose as well as its language and structure by perpetuating sex-based wage disparities.”[118] The Court stated that “the wage gap that so concerned Congress in 1963 has only narrowed, not closed” and that “[t]he wage gap persists across nearly all occupations and industries,” noting that “[t]hese differences are even more pronounced among women of color.”[119]

On July 2, 2020, the U.S. Supreme Court denied a petition for writ of certiorari in the Rizo case.[120] While uncertainty may persist surrounding the legal issues addressed by the Ninth Circuit Court of Appeals in Rizo, the considerable legislative and executive efforts outlined in this article suggest some meaningful progress in combatting pay inequity in the federal government workforce. For example, Executive Order 14035, directed federal agencies to take the following non-exhaustive actions to achieve this goal:[121]

• Offer bias training to all employees covering what bias is, how to recognize it, and what to do about it;
• Establish mentoring programs;
• Provide opportunities for meaningful work assignments, including Acting Supervisor positions and detail assignments;
• Abolish salary history;
• Establish meaningful paths to advancement, such as pathway programs;
• Provide necessary accommodations outright instead of as an afterthought;
• Provide paid internships;
• Provide work flexibility, such as alternate work schedules and telework;
• Add inclusive practices in performance ratings;
• Advertise available positions throughout the agency or workplace;
• Establish Agency succession plans;
• Establish educational reimbursement programs;
• Demonstrate a commitment to equal employment from the top of the Agency down; and
• Discipline supervisors and employees who have been found to discriminate against underserved employees.

These are just a few suggestions to end pay inequity and provide employment opportunities for all. The list is not exclusive. As the model and the largest employer, the federal government must continue to take the lead in implementing policies that lead to greater pay equity.

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FOOTNOTES:

[1] The Office of Federal Operations would like to thank summer interns Mona Alsaidi, Harsha Mikkilineni, Desmond Nichols, and Ellie Stitzer for their research and writing assistance. We also thank EEOC Research Librarian, Kaitlyn Lyles, for her legislative history research, and Psychologist Dr. Romella Janene El Kharzanzi for her research assistance.

[2] 29 U.S.C. § 206(d).

[3] 42 U.S.C. § 2000e et seq.

[4] U.S. Equal Emp. Opportunity Comm’n, Facts About Equal Pay and Compensation Discrimination, OLC Control No. EEOC-NVTA-0000-12 (Jan. 15, 1997).

[5] The White House Briefing Room Statement from President Joseph R. Biden on House Passage of the Paycheck Fairness Act (Apr. 15, 2021).

[6] Id.

[7] Executive Order 14035, 86 Fed. Reg. 34.601 (June 30, 2021).

[8] Nat’l Women’s Law Ctr., The Paycheck Fairness Act and Raise the Wage Act Will Help Women Build Economic Security (Jan. 28, 2021).

[9] Joint Econ. Comm’n. of the U.S. Cong., Gender Pay Inequality: Consequences for Women, Families, & the Economy, p. 6 (Apr. 2016).

[10] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-I (Dec. 5, 2000).

[11] Executive Order 14035, 86 Fed. Reg. 34.594 (June 30, 2021).

[12] 29 U.S.C. § 791 et seq.

[13] 42 U.S.C. § 12101, et seq.

[14] 29 U.S.C. § 621 et seq.

[15] 42 U.S.C. § 2000ff-1(a).

[16] Executive Order 14035, 86 Fed. Reg. 34.594 (June 30, 2021).

[17] U.S. Equal Emp. Opportunity Comm’n, Facts About Equal Pay and Compensation Discrimination, OLC Control No. EEOC-NVTA-0000-12 (Jan. 15, 1997).

[18] U.S. Equal Emp. Opportunity Comm’n, Equal Pay/Compensation Discrimination, http://www.eeoc.gov/equal-paycompensation-discrimination.

[19] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-V (Dec. 5, 2000).

[20] Rizo v. Yovino, 950 F.3d 1217, 1223 (9th Cir. 2020), citing Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 640 (2007) (stating that “the EPA and Title VII are not the same,” in part because “the EPA does not require … proof of intentional discrimination”), superseded by statute, Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009).

[21] Rizo, 950 F.3d at 1222; U.S. Equal Emp. Opportunity Comm’n, Facts About Equal Pay and Compensation Discrimination, OLC Control No. EEOC-NVTA-0000-12 (Jan. 15, 1997).

[22] Rizo, 950 F.3d at 1222, citing EEOC v. Md. Ins. Admin., 879 F.3d 114, 121 (4th Cir. 2018)(emphasis in original and internal cite omitted); see also Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006).

[23] McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).

[24] See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell-Douglas, 411 U.S. at 804.

[25] See Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr., 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell-Douglas, 411 U.S. at 804.

[26] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-V (Dec. 5, 2000).

[27] Id.

[28] 452 U.S. 161 (1981).

[29] Id.

[30] Id.

[31] 29 C.F.R. § 1620.27, Relationship to the Equal Pay Act to Title VII of the Civil Rights Act.

[32] Id.

[33] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-V (Dec. 5, 2000).

[34] Id.

[35] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-VI (Dec. 5, 2000).

[36] U.S. Equal Emp. Opportunity Comm’n, Management Directive 110, Ch. 11, Sec. III(J) (Aug. 5, 2015).

[37] Id.

[38] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-VI (Dec. 5, 2000).

[39] Id.

[40] U.S. Equal Emp. Opportunity Comm’n, Management Directive 110, Ch. 11, Sec. III(J) (Aug. 5, 2015).

[41] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-I (Dec. 5, 2000).

[42] U.S. Government Accountability Office Report to Congressional Requesters, Gender Pay Differences, GAO-21-67 (Dec. 2020).

[43] Id.

[44] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-I (Dec. 5, 2000).

[45] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 15, Race & Color Discrimination, 15-IV(C), Intersectional Discrimination (Apr. 19, 2006).

[46] Id. (citing Jeffries v. Harris Co. Comty. Action Ass’n, 651 F.2d 1025, 1032-34 (5th Cir. 1980)).

[47] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 15, Race & Color Discrimination, 15-IV(C), Intersectional Discrimination (Apr. 19, 2006) (citing Lam v. Univ. of Hawaii, 40 F.3d 1551, 1561-62 (9th Cir. 1994)).

[48] Id.

[49] U.S. Equal Emp. Opportunity Comm’n, Q & A: Compliance Manual Section on Compensation Discrimination, OLC Control No. EEOC-NVTA-2000-3 (Dec. 5, 2000).

[50] Id.

[51] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 15, Race & Color Discrimination, 15-IV(C), Intersectional Discrimination (Apr. 19, 2006).

[52] U.S. Equal Emp. Opportunity Comm’n, Questions and Answers: Enforcement Guidance on National Origin Discrimination, Question 7, OLC Control No. EEOC-NVTA-2016-9 (Nov. 21, 2016).

[53] Id.

[54] 400 U.S. 542 (1971).

[55] Id.

[56] See Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1046 (10th Cir. 2020).

[57] Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

[58] 457 U.S. 440 (1982).

[59] Id. at 455 (citing Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 708 (1978)).

[60] Id.

[61] See Bostock v. Clayton Cnty., Ga., 590 U.S. ___,140 S. Ct. 1731 (2020).

[62] Id.

[63] Id.

[64] Id.; see also Babb v. Wilkie, 140 S. Ct. 1168 (2020) (holding that the plain meaning of the language “made free from any discrimination based on age” in the ADEA demands that personnel actions be free from any consideration of age, and the causation standard in federal sector age discrimination claims applies when considering the relief available).

[65] Id.

[66] Phillips, 400 U.S. at 543-44.

[67] 444 F.2d 1194 (7th Cir. 1971).

[68] 40 F.3d 1551 (9th Cir. 1994).

[69] 615 F.2d 1025 (5th Cir. 1980).

[70] Id. at 1028.

[71] Id. at 1032.

[72] Id.

[73] Id.

[74]966 F.3d at 1049.

[75] Id. at 1045-46 (citing Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)).

[76] Id. at 1045-49.

[77] Id. at 1049.

[78] EEOC Appeal No. 0120070491 (Jan. 15, 2010).

[79] See Coleman v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01997187 (Sept. 6, 2001); Kahn v. U.S. Postal Serv., EEOC Appeal No. 01A00313 (Apr. 26, 2000).

[80] Joint Econ. Comm’n. of the U.S. Congress, Gender Pay Inequality: Consequences for Women, Families, & the Economy, p. 6 (Apr. 2016).

[81] Id.

[82] U.S. Equal Emp. Opportunity Comm’n African American Workgroup Report, Executive Summary, /federal-sector/report/eeoc-african-American-workgroup-report.

[83] Id.

[84] U.S. Equal Emp. Opportunity Comm’n Women’s Work Group Report, /federal-sector/reports/eeoc-womens-work-group-report.

[85] Id.

[86] U.S. Equal Emp. Opportunity Comm’n Annual Report on the Federal Work Force Part II: Form 462 and MD-715 Data Tales for FY 2017 and FY 2018, www.eeoc.gov/federal-sector/reports/annual-report-federal-workforce-form-462-and-md-715-data-tables-fy-2017-and.

[87] Id.

[88] Id.

[89] U.S. Equal Emp. Opportunity Comm’n, Q & A: Compliance Manual Section on Compensation Discrimination, OLC Control No. EEOC-NVTA-2000-3 (Dec. 5, 2000).

[90] Id.

[91] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-I (Dec. 5, 2000).

[92] See e.g., Bart M. v. Dep’t of the Interior, EEOC Appeal No. 0120160543 (Jan. 22, 2021) (finding discrimination based on sexual orientation when Agency failed to select Complainant for a position); Bennett W. v. Dep’t of the Interior, EEOC Appeal No. 2019005238 (Nov. 9, 2020) (finding disability discrimination when Agency cancelled Complainant’s training); Madlyn F. & Lashawn C. v. U.S. Agency for Global Media, EEOC Appeal Nos. 2020003512 and 2019005498 (Feb. 9, 2021) (finding sex discrimination regarding Agency’s actions that affected their ability to perform their jobs and non-selections); Iliana S. v. U.S. Postal Serv., EEOC Appeal No. 2019005824 (Dec.7, 2020) (finding race discrimination regarding non-selection); Irene M. v. Dep’t of the Navy, EEOC Appeal No. 2020001286 (Feb. 2, 2021) (finding retaliation regarding a low performance rating); Claude A. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003160 (May 25, 2021); Darlene H. v. Dep’t of Transp., EEOC Appeal No. 2019004438 (Nov. 18, 2020) (finding, among other things, retaliation regarding performance evaluation); Derrick T. v. Dep’t of Justice, EEOC Appeal No. 2020001239 (Dec. 14, 2020) (finding sex and age discrimination regarding non-selection); Sharon S. v. Dep’t of Def., EEOC Appeal No. 2020002362 (Oct. 1, 2020) (affirming finding of race and sex discrimination regarding non-selection).

[93] EEOC Appeal No. 2020003160 (May 25, 2021).

[94] EEOC Appeal No. 0720180026 (June 6, 2019).

[95] EEOC Appeal No. 0120160543 (Jan. 14, 2021).

[96] EEOC Appeal No. 2020001239 (Dec. 14, 2020).

[97] H.R. Rep. No. 117-13, at 2, 8-9 (2021) (Comm. Rep).

[98] Id. at 9.

[99] Id. at 15.

[100] Id. at 40.

[101] Id.

[102] Id.

[103] Roll Call Vote, 117th Cong., 1st Sess. (June 8, 2021).

[104] Executive Order 14035, 86 Fed. Reg. 34,593 (June 30, 2021).

[105] Executive Order 14035, 86 Fed. Reg. 34,601 (June 30, 2021).

[106] Executive Order 14035, 86 Fed. Reg. 34,602 (June 30, 2021).

[107] Id.

[108] H.R. Rep. No. 117-13, at 28 (2021) (Comm. Rep.), citing Nat’l Women’s Law Ctr., Asking for Salary History Perpetuates Pay Discrimination from Job to Job (2020), https://nwlc.org/wp-content/uploads/2018/12/Asking-for-Salary-History-Perpetuates-Discrimination-1.14.2020-v2.pdf.

[109] H.R. Rep. No. 117-13, at 28 (2021) (Comm. Rep.).

[110] U.S. Equal Emp. Opportunity Comm’n Compliance Manual, Section 10, Compensation Discrimination, 10-IV(F)(2)(g) (Dec. 5, 2000).

[111] H.R. Rep. No. 117-13, at 28 (2021) (Comm. Rep.) (hearing testimony of Fatima Goss Graves, CEO and President, NWLC).

[112] Id.

[113] Id. at 8.

[114] Id. at 28.

[115] 950 F.3d 1217 (9th Cir. 2020).

[116] Rizo, 950 F.3d at 1228.

[117]Compare id. at 1230-31 and Brief for the EEOC as Amicus Curiae in Support of Rehearing En Banc at 7, Rizo, 950 F.3d 1217; see also Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995); Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015).

[118] Rizo, 950 F.3d at 1228.

[119] Id. at 1228-29.

[120] 141 S. Ct. 189 (July 2, 2020).

[121] Executive Order 14035, 86 Fed. Reg. 34,593-602 (June 30, 2021).