Pay the lady

Patricia Arquette won the Oscar for Best Supporting Actress at this year’s Academy Awards, and people are still buzzing about her acceptance speech where she exclaimed: “It’s our time to have wage equality once and for all, and equal rights for women in the United States of America!”

Arquette will be pleased to know that the Equal Employment Opportunity Commission (EEOC) vigorously administers the Equal Pay Act, which guarantees equal pay for equal work. In fact, an EPA complainant doesn’t even have to file a charge with the EEOC and, unlike with Title VII or the Americans with Disabilities Act, can proceed straight to court with a lawsuit.

To prevail in an EPA lawsuit, an individual must demonstrate that her employer paid employees of the opposite sex different wages for equal work or for jobs the performance of which requires equal skill, effort, and responsibility or are performed under similar working conditions. The jobs at issue need not be identical, but substantially equal, which is determined on a case-by-case basis. If the plaintiff can make this showing, the burden shifts to the employer to prove that its pay is determined by: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) any other factor other than sex, e.g., education and experience.  Even if the employer establishes its defense, an EPA plaintiff can still try to put on evidence that the defense is a pretext for gender-based pay discrimination.

According to industry sources, for the period June 2013 to June 2014, the four highest-paid male actors raked in $35M-$52M while the four highest-paid actresses made $15M-$35M. Production companies probably have various rationales for paying their male talent more than their female talent. But maybe Arquette has a point because one strains to understand how Jennifer Lawrence–Oscar winner, three-time Oscar nominee, Katniss Everdeen–earns less than The Rock.

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  Brian Kurtz