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February 27, 2010
Federal Statues That Prohibit Gender Based Differences in Pay

In a BLR webinar entitled "Wage & Hour Risks in 2010: Preventing the Most Common (and Costly) Wage & Hour Mistakes," attorneys Mark E. Tabakman and Thomas C. Wigand discussed current federal statutes prohibiting gender-based differences in pay and made note of which organizations are covered under each statue.

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The two federal statutes that prohibit gender-based differences in pay are the Equal Pay Act of 1963 (EPA) and Title VII of the Civil Rights Act of 1964 (Title VII).

The EPA prohibits differentials in pay that are based primarily on gender. Employers covered by the EPA must ensure that male and female employees are paid equal wages for performing substantially equal jobs. The EPA applies to both male and female employees. Because it is part of the Fair Labor Standards Act (FLSA), it has the same basic coverage of employers engaged in interstate commerce (virtually all employers).

Title VII of the Civil Rights Act of 1964 (Title VII) requires the same equal treatment of employees regardless of gender. Under federal regulations, employers who are subject to both the EPA and Title VII will be found in violation of both statutes if they violate the EPA. However, because Title VII covers additional types of wage discrimination, an employment practice that does not violate the EPA may, nonetheless, violate Title VII (29 CFR 1620.27).

Title VII covers employers with 15 or more employees and prohibits discrimination "on the basis of sex" with respect to wages and other terms and conditions of employment. Title VII also prohibits pay discrimination based on race, color, religion, or national origin.

Mark E. Tabakman, Esq., is a partner in the nationwide law firm Fox Rothschild, LLP. He can be contacted by e-mail at mtabakman@foxrothschild.com.

Thomas C. Wigand, SPHR, Esq., is the founder of Wigand Associates LLP, an employment advisory consulting practice based in Middletown, Rhode Island. He can be contracted by visiting www.wigandassociates.com.

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