The Federal Equal Pay Act prohibits covered employers from paying employees of one sex less than employees of the opposite sex in the same establishment for substantially equal work requiring equal skill, effort and responsibility under similar working conditions. Jobs need not be identical, and job titles do not control. A pay difference may be lawful if the employer proves that it results from a bona fide seniority system, merit system, system measuring quantity or quality of production, or another factor other than sex. If a violation exists, the employer cannot comply by reducing the higher-paid employee's wage.
Jurisdiction: United States
The Equal Pay Act Is Part of the Fair Labor Standards Act
The Equal Pay Act of 1963 amended the Fair Labor Standards Act and is codified at 29 U.S.C. 206(d). Its core rule prohibits sex-based wage discrimination between employees in the same establishment when they perform substantially equal work under similar working conditions. The statute applies through the FLSA framework and is enforced by the EEOC. Employers should distinguish this specific federal test from Title VII compensation discrimination, which can operate under a broader comparator structure. The EPA is therefore a central part of federal pay equity law but not the entire federal framework.
Jobs Must Be Substantially Equal, Not Identical
EEOC guidance emphasizes that the jobs being compared do not have to be identical. They must be substantially equal based on actual job content. Skill concerns the experience, ability, education and training required for the job. Effort concerns the physical or mental exertion required. Responsibility concerns the degree of accountability. Working conditions concern the physical surroundings and hazards. The focus is on what the job requires rather than the qualifications an individual employee happens to possess. Minor differences in duty do not necessarily defeat a comparison, while meaningful differences can affect the analysis.
The Comparison Is Generally Within the Same Establishment
The statute refers to employees within the same establishment. EEOC guidance explains that an establishment is ordinarily a distinct physical place of business rather than an entire company. In some circumstances, physically separate locations may be treated as one establishment where central administration controls matters such as hiring, compensation and assignment. Employers should therefore avoid assuming either that every company location is automatically combined or that physical separation always ends the analysis. The facts of compensation administration can matter.
The Employer Has Four Statutory Paths for Explaining a Differential
The Equal Pay Act permits wage differences resulting from a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or a differential based on another factor other than sex. These are affirmative defenses, so the employer bears the burden of proving that the defense actually explains the difference. EEOC guidance also stresses that seniority, merit and production systems must be bona fide. A label is not enough. Employers should be able to show predetermined criteria, consistent application and records demonstrating how the system affected the employees being compared.
Compensation Means More Than Base Salary
Pay discrimination analysis should not stop at annual salary or hourly wage. EEOC compensation guidance treats compensation broadly and can include forms of remuneration such as bonuses, commissions, overtime, benefits and other payments made because of employment. A compensation review should therefore identify the pay elements relevant to the employees being compared. Two employees with the same base salary may still have materially different total compensation if one receives larger bonuses, commissions or other benefits. Employers should document which components are governed by the same criteria and which arise from distinct, lawful compensation arrangements.
An Employer Cannot Fix a Violation by Cutting the Higher Wage
The Equal Pay Act expressly prohibits an employer from complying by reducing the wage rate of an employee. If an unlawful differential exists, the employer cannot simply lower the higher-paid worker to create equality. Remediation therefore requires careful legal and compensation analysis, including how back pay, prospective adjustments and related remedies apply. Employers should also consider whether the same facts raise issues under Title VII or state law, because correcting the EPA issue may not resolve every related claim.
EPA Compliance Depends on Job Evidence, Not Titles Alone
The practical compliance task is to preserve evidence about what jobs require and how pay is set. Current job descriptions, level definitions, responsibility matrices, required qualifications and compensation records can help establish whether jobs are substantially equal and whether a differential is supported by a statutory defense. Generic job titles are much less useful where employees with the same title perform materially different work or where different titles mask substantially equal duties. Employers should periodically review job content and compensation together so the documentation reflects how work is actually performed.
Frequently Asked Questions
Do jobs need to be identical under the Equal Pay Act?
No. They must be substantially equal in skill, effort and responsibility and be performed under similar working conditions.
Who must prove an Equal Pay Act defense?
Once the statutory comparison is established, the employer bears the burden of proving that the wage differential is explained by one of the EPA's affirmative defenses.
Can an employer lower the higher salary to fix an Equal Pay Act violation?
No. The statute expressly prohibits reducing another employee's wage rate as the method of compliance.
Related Guides
Official Sources
Requirements and practices differ by jurisdiction and organisation. Check current local law, official guidance and professional advice for a specific situation.