A recent guest editorial (“Philadelphia pay-equity case attracts national focus”) mischaracterizes an important facet of the pay equity discussion. Federal and state law require men and women to be paid equally for equal work. However, as the editorial notes, the laws also include exceptions when wages are based on seniority, merit, quantity or quality of production, or any other factor other than sex. The editorial repeatedly refers to the ‘factors other than sex’ exception as a “loophole” and accuses employers of exploiting this exception “as a pretext for gender wage discrimination.”
This accusation is an unfair and misleading portrayal of an important employer protection which has long helped maintain the balance between fighting discrimination and ensuring fair application of the law.
Anyone familiar with operating a business knows that pay differences among employees can and do exist for many reasons that have absolutely nothing to do with sex discrimination. An employer may increase wages for an employee being recruited by a competitor or provide a more generous salary to a new hire who was uniquely qualified, as opposed to another new hire who barely met the job qualifications. Some employers allow employees to choose between a bonus or extra vacation days or between a higher salary or more flexible work schedule. If these or similar scenarios create wage disparities, should the employer be found to have committed discrimination? Authors of equal pay laws, which include the ‘factors other than sex’ exception, apparently didn’t think so.
Recognizing this feature of equal pay law is important: the PA Chamber is pushing back against efforts in the state legislature to eliminate this employer protection. If ever enacted, honest employers would be subjected to frivolous and costly lawsuits, especially small businesses that may not have legal departments or HR personnel to combat unscrupulous plaintiffs’ lawyers.
Director of Government Affairs
Pennsylvania Chamber of Business and Industry