by Paula Määttä

XII. United States

C. Measures for determining and promoting pay equality

1. Permitted grounds for wage differentials

Exceptions for equl pay are allowed if such payment is based on:

(i) a seniority system;

(ii) a merit system;

(iii) a system which measures earnings by quantity or quality of production; or

(iv) a differential based on any factor other than sex.

When these factors are used to determine the rate of pay, they must be applied on a sex- neutral basis.

2. Instruments used to promote equality

The Equal Employment Opportunity Commission (EEOC) develops uniform standards, guidelines and procedures to implement the principle of equal pay at federal, state and local levels, and in both the private and public sectors. The EEOC assists in establishing uniform job-related qualifications and requirements for job classifications and descriptions.

The Equal Pay Act prohibits discrimination by employers on the basis of sex in the wages paid for "equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions". The nature of these criteria and their relative importance may change in different organizations depending on what the most important and relevant factors are for their own aims (Beuhring 1989, pp. 169-170).

The Equal Pay Act and Title VII do not designate that any particular method should be used by the courts to determine whether work is "equal". According to the Equal Pay Act, the mans job and the womans job have to be equal, which means that in most cases brought under the Act the jobs have been the same or very similar. Comparison of jobs usually takes place in a non-analytical way. (Bellace 1993, p. 165.)

In Title VII cases, where the womans job and the mans job need not be similar, more analysis is required for comparing the value of the jobs. In comparable worth cases, the parties have often called management consultants as expert witnesses to testify as to their own policies. Sometimes the employer has used a formal job evaluation scheme for determining the companys wage rates, and sometimes the employer has not used any formal job evaluation scheme. Job evaluation procedures do not always reflect the importance of achieving equal pay, but rather, the interests of the firm. According to the ILO, the real object of investigation and comparison is the content of the job, not the rather imprecise notion of its "value" to the firm (ILO 1986(a), p. 2; Bellace 1993, p. 165.)

In general, the implementation of comparable worth follows a similar pattern. First, the mans and the womans jobs are identified within the organisation. The jobs are then evaluated according to a job evaluation scheme. Thirdly, the relationship between pay and job evaluation results are established,often by estimating separate pay lnes for the mans job and womans job. The pay of the undervalued womans job is then adjusted to the pay of the mans job that is of comparable value as established by the job evaluation procedure. (Gunderson 1994, p. 27.)

3. Scope of comparison

The Equal Pay Act provides that no employer may pay women less for equal work in any establishment. The equal work standard does not require that compared jobs be identical, only that they are substantially equal. Comparison can be made for equal pay purposes between employees employed in equal jobs in the same establishment, although they might work in different departments. The establishment has to be situated in the same geographical location. Under the Equal Pay Act, comparison does not extend to dissimilar work. In comparable worth cases under Title VII, however, a woman can compare her job to mans job in very different occupational categories. Comparison is not possible in situations where women and men perform the same job in different establishments which belong to the same company. (Bellace 1993, pp. 162,166.)