Specific Claims· 13 min read

Pay Discrimination: What You Need to Prove

Pay discrimination is covered by two separate federal laws with different standards, different defenses, and different procedural requirements. The Equal Pay Act targets sex-based wage disparities specifically. Title VII covers pay discrimination on the basis of race, sex, national origin, religion, and other protected characteristics. Understanding which law applies — and how to use both — is critical to building a complete pay discrimination case.

The Equal Pay Act

The Equal Pay Act (EPA) requires equal pay for men and women performing substantially equal work at the same establishment. "Substantially equal" means requiring substantially equal skill, effort, and responsibility performed under similar working conditions. Job titles don't control — two jobs with different titles but equivalent content are covered. The EPA is a strict liability statute: the plaintiff doesn't need to prove discriminatory intent. Proof that a woman is paid less than a man for substantially equal work shifts the burden to the employer to justify the gap under one of four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system measuring earnings by quantity or quality of production; or (4) a differential based on any factor other than sex. The "factor other than sex" defense is the most commonly invoked and the most litigated.

What You Need to Prove Under the EPA

The plaintiff must show: (1) they received lower wages than an employee of the opposite sex; (2) who worked in the same establishment; (3) on jobs requiring substantially equal skill, effort, and responsibility; (4) performed under similar working conditions. The comparator doesn't need to work at the same time — a successor in the same role can serve as a comparator. Once these elements are shown, the employer bears the burden of proving a statutory defense. If the employer cannot justify the gap, liability follows automatically.

Title VII Pay Claims

Title VII pay claims require showing discriminatory intent — the employer paid less because of a protected characteristic. The McDonnell Douglas framework applies. Comparators are still relevant but must also support the inference that the pay gap was caused by the protected characteristic, not just correlated with it. Title VII covers pay discrimination on bases the EPA doesn't — race, national origin, religion, age (via the ADEA). Title VII and EPA claims can be pursued simultaneously. The different standards and different burden structures mean they're often worth pleading in the alternative.

Salary History and Pay Transparency

A growing number of states prohibit employers from asking about salary history, recognizing that prior pay often reflects historical discrimination. Separately, pay transparency laws in Colorado, New York, California, and other states require employers to post salary ranges for open positions. Evidence that an employer set a plaintiff's pay below the stated range for their position — or below market for the role — can support a pay discrimination claim. Workers who suspect pay discrimination should document what they know about pay rates for comparable roles — conversations with coworkers (which the NLRA generally protects), public salary data, offer letters, and any pay-related communications from management.

Key takeaways

The Equal Pay Act
What You Need to Prove Under the EPA
Title VII Pay Claims
Salary History and Pay Transparency

Citations

Equal Pay Act of 1963, 29 U.S.C. § 206(d) — Cited authority
Title VII, 42 U.S.C. § 2000e-2 — Cited authority
Corning Glass Works v. Brennan, 417 U.S. 188 (1974) — Cited authority
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), superseded by Lilly Ledbetter Fair Pay Act of 2009 — Cited authority

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Proving Retaliation: The Causation Puzzle