Pay disparities based on any protected class characteristics are discriminatory, but pay discrimination based on sex is a particular concern. A substantial gap still exists between the earnings of full-time male workers and full-time female workers. Overall, female workers had median weekly earnings that were 82 percent of men’s corresponding earnings in 2016. Many factors undoubtedly account for the persistent male-female earnings gap.

Identifying discrimination in pay is particularly challenging. Pay determinations are, by their nature, individualized. This is particularly true when an employer bases pay on assessments of individuals’ performance or merit. Pay is influenced by a multitude of factors, including the labor market, an organization’s pay structure, the conditions and demands of the job, and a host of individual characteristics (e.g., seniority, education, special skills).

More than most other employment decisions, pay determinations are subject to negotiation and are affected by prior decisions that might reach back far in time (e.g., starting pay). Sorting through these complexities requires an approach somewhat different from that used in other discrimination cases. A methodology for proving pay discrimination has been developed for Equal Pay Act (EPA) cases. Employers are prohibited from paying a person of one sex at a lower rate than a person of another sex for performing substantially equal work in the same establishment.

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