Updated: May 6
Author: Fawn Hentrel, Managing Partner, Accendi Group
It’s been more than 50 years since John F. Kennedy put his signature on the Equal Opportunity Act. However, despite many victories along the way, the fight for fair pay between the genders is still an ongoing battle, and more progress still needs to be made.
In August 2017, the Trump administration may have inadvertently stalled the advance of equal pay with the halting of an Obama-era policy that was introduced to reduce the wage gap between races and genders. Ivanka Trump made a statement saying she supports equal pay but was not convinced the policy would do as it was planned. However, without accurate information, it's more challenging to determine whether employers are complying with equal pay policies.
Now with the result of a court order issued on April 25, 2019, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued a ruling siding with the plaintiffs that the Trump Administration’s 2017 decision to “stay” the data collection was improper. Subsequently ordering the EEOC to start the collection of pay data.
In 2019, the Equal Employment Opportunities Committee (EEOC) intends to continue focusing resources on bringing about equal pay and ensuring that employers get behind the Equal Opportunity Act to do their part in creating a fair and equitable work environment for all. This was brought into the forefront when Acting Chair Victoria A. Lipnic of the EEOC recognized Equal Pay Day - how far into the year women must work to earn what men earned the previous year on April 2, 2019.
Equal pay is gaining a lot of attention of late, possibly due to the number of legislators who have been introducing bills linked to wage and salary inequality. In particular, Maryland, Massachusetts, New York, and California have all started the ball rolling with broader definitions for the equal pay standard.
Laws and guidance have been laid down which cover a wider range of standards for employers to follow. Employers are asked to consider employee attributes when determining an equitable rate of pay including skill, working conditions, responsibility, and effort. On July 15, 2019, the EEOC started the collection of pay and hours worked data for calendar years 2017 and 2018, if the employer has 100 or more employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file the EEO-1 form during the workforce snapshot period. With this new reporting requirement, it is even more imperative that businesses document valid reasons for any discrepancies in pay throughout their workforce. Being an equal opportunity employer may be a road that is paved with good intentions, but these may not be enough to protect them from a complaint made under EEOC regulations.
Internal complaints made at the company are generally easy to resolve while avoiding long-term damage. However, a complaint lodged with the EEOC can have severe ramifications if action isn't quickly taken to remedy the situation.
Employers should avail themselves of the tools which can make it easier to remain in compliance, but this doesn't mean they won't run afoul of the regulations in some other way. Reports indicate that more businesses are aware of the EEO guidelines, but increased awareness has not translated into a reduction in the number of complaints being made. There are still around 90,000 complaints filed with the EEOC every year, with quite a few of those escalating into expensive courtroom dramas.
Employers should act promptly when charges are made. Although surprisingly, there are still a number of employers that think they can make the problem go away simply by ignoring the complaint, but this is never the best strategy.
It's important to comply with EEOC investigations in every way possible, as anything else will only end up costing your business time and money. Being proactive and consistent will help to enhance your position with the court. And when it's all said and done, consider the complaint as an opportunity for learning and seek to address the issues that brought about the grievance in the first place.