You Haven't Come a Long Way, Baby: The Courts' Inability to Eliminate the Gender Gap Fifty-Two Years After the Passage of the Equal Pay Act

I. INTRODUCTIONThe Equal Pay Act states that no employer shall discriminate on the basis of sex by paying employees of opposite sexes different wages for equal work on jobs that require near identical skill, effort, and responsibility, and are performed under equal working conditions.1 Although Congress enacted the Equal Pay Act fifty-two years ago, the wage gap still exists today.2 The wage gap has become a statistical indicator that is used to measure the status of women's wages compared to men's; the most current data from 2014 shows that women earned 78.6 percent as much as their male counterparts.3 Often employers reason that the gender wage gap spurs from the life choices women make, the degrees they choose to pursue, and the job fields they enter into.4 Employers often blame the gender wage gap on a woman's choice to have children; however, a man's decision to start a family frequently has no impact on his salary or career.5While these fallacies exist to provide society with a reason for the wage gap, employers' explanations tend to cover up a much uglier truth: women face a seven percent wage disparity immediately after graduating college.6 All factors accounted for, and ten years after graduation, full-time female workers were found to have a 12 percent unexplained difference in their earnings compared to equally situated males.7 This evidence proves that even between equally qualified and educated men and women, men continue to earn more than their female counterparts in most fields.8While statistics alone provide a bleak outlook on the gender wage gap, court decisions set an even gloomier stage.9 Once a plaintiff makes out a prima facie case under the Equal Pay Act, the burden then shifts to employers to justify the lower wage through one or more affirmative defenses, including a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any "factor other than sex."10 Court opinions often find that the differential based on any "factor other than sex" is a theoretical catchall where employers find arbitrary ways to justify a woman's lower pay.11 Therefore, courts have concluded that to successfully establish a "factor other than sex" defense, an employer must prove that it had a legitimate business reason for implementing the gender-neutral factor that resulted in the pay difference.12 Although courts tend to find more frequently for employers in disparate pay cases, the Equal Employment Opportunity Commission (EEOC) continues to represent women who are discriminated against in the workforce; in 2011, monetary awards for sex based discrimination cases resolved through the EEOC totaled just over $145 million.13This Comment argues that the Equal Pay Act has not resulted in the change it meant to implement, and the continuing wage disparity between men and women proves this. Part II of this Comment summarizes the various approaches different circuits take to resolve Equal Pay Act claims, especially in relation to the affirmative defenses employers are allowed, as well as modification of the elements necessary for a prima facie Equal Pay Act case, and the effect that the Iqbal and Twombly possibility versus plausibility paradox has had on Equal Pay Act claims.14 Part III argues that circuits should follow the reasoning of the Fifth Circuit's substantially equal definition to evaluate Equal Pay Act claims, that the original language "comparable character" that was previously in the Equal Pay Act should be reenacted so as to allow for more successful Equal Pay Act claims, and that the affirmative defenses, especially the "factor other than sex," should be strictly monitored by the courts so as to prevent arbitrary dismissal of Equal Pay Act claims.15 Part IV concludes that the Equal Pay Act was meant to implement equal wages for men and women employed in similarly situated positions, and that courts should mirror the Second and Fifth Circuits' approaches to appropriately address and evaluate Equal Pay Act claims so as to reduce the gender wage gap. …