EEOC takes new approach to targeting pay discrimination
The EEOC is getting ready to double-down on pay discrimination. In an effort to combat gender-based pay discrimination, the commission has launched pilot programs at three of its district offices to figure out the best approach to using its authority to conduct direct investigations — investigations initiated without any prior charge of pay discrimination — to determine whether Equal Pay Act violations are occurring.
To understand more about this developing strategy, CCH Employment Law Daily reached out to EEOC Senior Attorney-Advisor Justine Lisser. She noted that the EEOC is part of the National Equal Pay Enforcement Task Force set up by President Barack Obama to address problems of gender-pay discrimination. The commission, as part of its role on the task force, has taken up a number of activities ranging from its commissioning of a study by the National Academy of Sciences on what types of compensation data are available and what the EEOC should try to compile, to training investigators, and its “Fair Pay Day” public events last year.
The commission is also “working with other government agencies with overlapping responsibilities, such as the OFCCP, Wage and Hour Division, and Women’s Bureau of the Department of Labor, to share best practices and information,” according to Lisser.
It is worth noting that in February 2011, the DOJ, the EEOC, and the OFCCP hosted a live webcast that “marked the first time in the history of the three agencies that their national and field staffs convened to discuss opportunities for increasing coordination, improving collaboration and sharing information in order to strengthen enforcement,” according to The Equal Pay Task Force Accomplishments report issued in April. Since then, these three agencies have taken several actions to improve coordination and enforcement. By the end of March 2012, the commission had provided compensation discrimination training to some 2,000 enforcement personnel from the EEOC, the OFCCP, the Wage and Hour Division, and state and local civil rights agencies.
The EEOC also has another tool to use in its attack on pay discrimination. Lisser pointed out that unlike Title VII, the EPA is enforced pursuant to the Fair Labor Standards Act. “This means that the EEOC does not need to wait for a charge of discrimination to be filed, and has the authority to conduct directed investigations of employers to assess whether Equal Pay Act violations are occurring,” she explained. The Wage and Hour Division routinely conducts directed investigations when looking into FLSA violations, and did so when it had authority to enforce the EPA — that authority was transferred from the Department of Labor to the EEOC in 1979, she said.
“Because discrimination in pay is difficult for individuals to assess since most employers do not make employees’ pay public, the EEOC’s authority to conduct directed investigations could be an important tool in combating pay discrimination,” Lisser observed. To this end, as part of the EEOC’s task force efforts, the commission is conducting pilot projects in three of its district offices — Chicago, New York, and Phoenix — to see what approaches work best, she said.
What’s the take-away? Pay discrimination is an issue that several federal agencies are targeting — not just individually, but with combined forces and efficiencies. And they’re not necessarily going to wait for a current or former employee to complain about discrimination in compensation — they’re poised to take action independent of employee complaints. This is one of those times when an ounce of prevention may be better than a pound of cure — employers may want to examine whether a gender-based pay disparity exists among their workforce.