by Boyd Byers
She didn’t win the crown, but Miss Utah, Marissa Powell, made the most news during the Miss USA pageant this summer. Her bungled response to a question about the gender pay gap went viral and was seen by millions on the Internet. But her response also generated serious discussion about equal pay. 
‘Create education better’
The question: “A recent report shows that in 40 percent of families with children, women are the primary earners, yet they continue to earn less than men. What does this say about society?”
Powell’s answer: “I think we can relate this back to education and how we are continuing to try to strive to . . . [long pause] figure out how to create jobs right now―that is the biggest problem. And I think, especially the men are, um, seen as the leaders of this and so we need to figure out how to create education better so that we can solve this problem.” Cringe.
Predictably, Powell’s epic fail lit up the Twitterverse and blogosphere, but she got a chance at Web redemption a few days later on the Today show. She told host Matt Lauer that the question was “confusing” to her, so he gave her a do-over. Powell’s new (scripted and rehearsed) answer was far better: “So this is not okay, it needs to be equal pay for equal work, and it’s hard enough already to earn a living and it shouldn’t be harder just because you’re a woman.”
Equal work = equal pay
The question posed to Miss Utah was prompted by the 50th anniversary of the Equal Pay Act (EPA). The EPA prohibits employers from paying employees of one gender lower wages than employees of the other gender for equal work in jobs that require equal skill, effort, and responsibility and that are performed in similar working conditions at the same establishment. However, the Act allows exceptions if an employer can show that wages are set in accordance with a seniority or merit system, a pay system that is based on quantity or quality of production, or any factor other than sex.
Unlike most discrimination laws, the EPA does not contain an intent requirement. Thus, an employer is strictly liable for wage disparities between similarly situated employees of different genders unless it can prove one of the four affirmative defenses. Employers may not reduce employees’ wages to comply with the EPA’s equal-pay requirement.
The U.S. Supreme Court has said that employers cannot justify paying women lower wages simply because they have traditionally received lower wages under the going market rate. Wage differentials that occur because women are willing to work for lower pay are unlawful.
Today, most employers know that it’s a no-no to pay men more than similarly situated women. But in the workplace, things that create gender pay gaps happen, sometimes unwittingly. Studies show that men are more likely to negotiate their starting salary or ask for a raise. That can cause significant pay disparities over time.
A different type of study published last year suggests that women may get smaller raises because managers believe they’ll handle it better than their male colleagues. “Research on stereotyping shows that people assume that women care more than men do about communality and belongingness and that men care more than women about their own attainment and self- interest,” the study’s author said. Thus, managers may think that women are better able to recognize the need for cutbacks and will not feel as personally offended as men if they receive small raises.
You can do several things to guard against pay disparities. Require HR to review and approve all pay decisions as a check on management. Periodically have an employment lawyer (under attorney-client privilege) audit pay practices to identify and help correct any inequalities. 
Boyd Byers is a partner with Foulston Siefkin LLP, practicing in the firm’s Wichita, Kansas, office. He may be contacted at bbyers@foulston.com.