by Paula Määttä

XII. United States

D. Supervision and enforcement of the equal pay principle

1. The Equal Employment Opportunity Commission

Title VII of the Civil Rights Act created the Equal Employment Opportunity Commission (EEOC) to enforce implementation of the legislation. It consists of five Commissioners. The Commissioner is appointed by the President and confirmed by the Senate. The EEOC has district offices throughout the United States. It cooperates with regional, state, local, and other agencies, both public and private, and individuals.

The EEOC and its authorized representatives under the Equal Pay Act may (i) conduct investigations and gather data; (ii) enter and inspect establishments and records, and make transcriptions thereof, and interview individuals; (iii) advise employers regarding any changes necessary or desirable to comply with the Act; (iv) subpna witnesses and order production of documents and other evidence; (v) supervise the payment of amounts; and (vi) initiate and conduct litigation.

A number of types of unlawful employment practices justifying complaints about wage discrimination have been determined under the Equal Pay Act and Title VII. First of all, it is an unlawful employment practice to classify a job as a "male job" or "female job" unless sex is a bona fide occupational qualification for the job. Secondly, it is contrary to the Equal Pay Act if a female worker is hired for a particularjob as a replacement for a male worker, but is paid a lower wage than the person replaced. In such cases, the employer must show that the wage differential is due to skill, effort, responsibility or working conditions. Thirdly, the Equal Pay Act prohibits employers to establish a lower wage rate by removing all employees of one sex from a job previously performed by employees of both sexes. The fourth unlawful employment practice concerns the situation where a person of one sex is paid more than the persons predecessor for gender reasons. In such cases, the lower paid person who preceded the higher paid person in the position is entitled to recover the difference between the wages. Fifthly, it is immaterial that a member of the higher paid sex ceased to be employed prior to the period covered by the applicable statute of limitations period for filing suit under the Equal Pay Act.

The EEOC can act on its own initiative to investigate suspected wage discrimination, or an individual can file a complaint with the EEOC. The filing of a claim is an essential procedure to pursuing any employment discrimination complaint. In addition to individual action, class actions are provided for under the Civil Rights Act of 1964. A class action allows a group of employees to lodge a claim relating to discriminatory employment practices. (ILO, 19-23 Nov 1990, pp. 83-85.)

Title VII requires that the EEOC defer filing a charge for 60 days in order to allow the relevant state or local agency to act in the matter, unless the state or local agency has waived its right to act. This 60-day deferral policy does not apply to charges under the Equal Pay Act. Once a charge is filed, the EEOC investigates the matter. After the investigation, the EEOC decides whether the claim has sufficient merit to warrant being litigated if the matter cannot be conciliated. (Bellace 1993, pp. 167-168.)

In the case of a Title VII charge, the EEOC must try to conciliate the matter so that the parties can reach a settlement between themselves. This is not a requirement , however, in Equal Pay Act cases.

If a charge has not been resolved within 180 days of filing, the EEOC must notify the charging party, who may then file a civil action in the federal district court within 90 days of receipt of the "right to sue" letter. In practice, all comparable worth cases under Title VII have been litigated by private plaintiffs.

2. Remedies

Back pay is available in lawsuits under both the Acts. Liability for back pay cannot extend further than two years prior to the date that the charge was filed with the EEOC. In an Equal Pay Act case, the employer would be ordered to adjust the wage rate for the womans job to that of the comparable mans job. In the case of sex discrimination in wage rate, where a higher wage rate is paid to one gender than the other for the equal work, the higher rate operates as a wage standard and the lower rate has to be raised to the level of the higher rate. The employer may not reduce the wage rate of any employee.

In an equal pay case under Title VII, the court may order such affirmative action as it finds appropriate, such as the revision of wage schedules.

3. Protection from victimisation and maintenance records

Title VII of the Civil Rights Act states that it is an unlawful employment practice for an employer to discriminate against any individual because that person has opposed any unlawful employment practice of the employer, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceedings or hearing under Title VII. Similar protection against victimisation applies to Equal Pay Act cases.

Every employer subject to the equal pay provision of the Act must maintain and preserve records which relate to the payment of wages, wage rates, job evaluations, job descriptions, merit systems, seniority systems, collective bargaining agreements, description of practices or other matters which describe or explain the basis for payment of any wage differential to employees of the opposite sex in the same establishment.