Women in the workplace are generally paid less than comparable males.
This article addresses two complementary legal devices by which women employees, particularly public employees, can obtain equal pay for equal work compared to male employees. If knowledge is power, then knowledge of the law is omnipotence.
The Equal Pay Act states that employers must pay women the same rate as men in equal positions. It is often difficult, however, to know whether men are being paid more for equal work.
Chapter 19 of Wisconsin Statutes, the so-called Open Records Law, gives women public employees leverage to obtain information about men who do comparable jobs and if there is a gender pay gap.
The Equal Pay Act and Chapter 19 together provide women with information they need to prove gender inequity and the legal mandate to obtain justice.
The Equal Pay Act
The Equal Pay Act of 1963 (EPA) is an amendment to the federal Fair Labor Standards Act that requires public and private employers pay women and men the same for equivalent work. Men and women must share the same rate of pay for jobs that require equal skill, effort and responsibility and that are performed under similar working conditions.
The EPA permits different rates of pay in gender-neutral systems, like seniority or merit systems. Employers can also defeat EPA claims by establishing other gender-neutral explanations for pay disparities between comparable men and women.
An employer violating the EPA is liable for two years of back pay to make up the difference between a woman employee’s compensation and that of a man’s. If the employer intentionally or willfully violates the EPA, an additional year is added, totaling three years of the payment to end the gender gap. And if the employer violates the EPA in bad faith, the three year award is doubled.
The Open Records Law
So, how does a female public employee obtain data to determine whether she is underpaid compared to men? Chapter 19 of the Wisconsin Statutes, the Open Records law, makes compensation data public. Some of this information is available on the Internet.
Women can secure other data by writing custodians of records in their areas of employment and requesting compensation data for males comparable in the skill, effort, responsibility and working conditions of their jobs. It is also helpful for women to acquire written job descriptions, if they exist, for male comparators, that is, men whose jobs are comparable to the women’s. This information is also public.
The state must respond to Chapter 19 requests within a reasonable time (the Attorney General’s office has written a memorandum that ten days is reasonable; the statute is not specific).
There are important limits on Chapter 19. Perhaps the most important is that Chapter 19 does not require the state to create any documents. The law merely permits members of the public to obtain copies of existing information.
Requests for general information on Chapter 19 can also be made. One can request, for example, all documents regarding the criteria used for making compensation decisions and for awarding pay increases or all statistical analysis performed to ensure that men’s compensation did not create gender disparity. The best questions are the ones that discover pay data (numbers) and the specifics of any attempts by the employer to measure a gender gap.
Women should seek information for their own compensation.
It is good to begin the search for information on the Internet to identify possible relevant data - a list of comparable male employees with similar work requirements, skills, responsibilities and effort - before submitting an open-records request to the custodian of the records being sought. If it is unclear who the custodian is, ask for an organizational chart. Chapter 19 permits the state to charge a reasonable price for copying records in response to requests.
An important point while doing this research: the EPA requires that the employment comparison be made between a woman and comparable men.
What to do with the Information
Once a woman employee has asked for everything that might exist regarding her own pay and that of all male comparators, she can organize the data to present to her supervisor - along with a request for a pay increase and compensation for past inequities.
Here is one way she can organize her information. She can:
- Describe her job and compensation history;
- Compare a man’s or mens’ job description(s) and compensation history(ies);
- Give a brief narrative why she believes that her job is equal in skill, effort, responsibility and working conditions to the man’s or men’s;
- Attach a copy of the Equal Pay Act (Many state managers have never heard of it. This is an opportunity to share knowledge);
- Propose resolution of the situation, including an unambiguous request for redress of past disparities and a specific pay raise to obviate future disparities.
A useful hint: In the first settlement attempt, the woman should compare herself to the male comparator with the greatest disparity; it is easy to retreat to a less striking comparator in the negotiating process.
A second hint: If there is a suggestion that the employer was indifferent to the issue of gender equity, as many state departments are, the woman employee should ask for the annual disparity multiplied by six in addition to a pay raise to close the gap (to address the bad faith component, discussed above).
Gender inequity is a pervasive problem. The proof of gender discrimination in pay is sometimes cloaked in justifications based on seniority and merit systems. The EPA applies to public and private employees, but women who work in the public sector have a greater likelihood of redress because of the combination of the EPA and Chapter 19.
This article was prepared for the Economic Security Task Force of the Wisconsin Women’s Network by Robert J. Kasieta, a task force member. Kasieta is an attorney with Kasieta Legal Group, LLC, a Madison-based law firm. This article was published in The Capital Times on August 7, 2002.