EQUAL PAY ACT CASES IN HIGHER EDUCATION

Abstract

This article reviews case law dealing with the Equal Pay Act as it applies to claims of pay discrimination by faculty in higher education. Elements of the cause of action, the four statutory defenses, and the need for a proper comparator of the opposite sex are discussed, as well as the use of statistical evidence, the statute of limitations and continuing violations, whether the Equal Pay Act abrogates the Eleventh Amendment immunity of the states, and the results of several universities’ internal gender equity pay studies. It has been more than forty years since the passage of the Equal Pay Act, which was designed to eliminate pay discrimination based on sex by requiring equal pay for equal work [1]. Although women’s pay has increased since 1963, women still find that they earn on average only 78 percent of what men earn annually in the United States [2]. Faculty women in higher education similarly earn about 80 percent of what male faculty earn [3, p. 29]. There are two reasons for the overall lower salaries for faculty women compared to faculty men. One is that women are more likely to be employed at the lower paid rank of nontenure track lecturer or in unranked positions. The second is that women are more likely to be employed at associate and baccalaureate colleges where salaries are lower than at institutions that confer graduate degrees [3]. Not only do faculty women earn less on average than faculty men in higher education, but also in specific instances, faculty women have found that they are paid less than comparable male faculty of the same rank in their same institutions. In these situations, the Equal Pay Act may be violated. To understand whether an Equal Pay Act violation may have occurred, this article discusses the elements of