United States: Equal Pay Day 2016: Where Are We 20 Years Later?

Last Updated: April 18 2016
Article by Lauri A. Damrell

Today marks the twentieth anniversary of "Equal Pay Day," which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year. In more than 50 years since enactment of the federal Equal Pay Act ("EPA") and Title VII of the Civil Rights Act of 1964 ("Title VII"), women have made significant progress in the workplace and now make up roughly half of the American workforce. However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade. That said, it is still not clear that employer bias is to blame for the gap that remains. Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.

While the pay gap continues to make headlines even twenty years after the first Equal Pay Day, the federal government's enforcement and reporting efforts under the EPA, Title VII and Executive Order 11246 do not reflect significant findings of pay bias. Notwithstanding these open questions, federal and state governments continue to double down on the discrimination narrative and have pushed for greater scrutiny of employers through legislation and executive action, with this year being perhaps the most active year on record. Though these efforts are well-intentioned—no one can dispute that women should be paid the same as their male counterparts for substantially similar work—it remains to be seen whether these efforts will finally narrow the gap. This begs the question whether the government, employers, and society as a whole ought to be thinking more broadly—and beyond alleged discrimination—to identify meaningful ways to narrow the pay gap.

Recent Federal Enforcement Efforts

As we reported in February, the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP") has been on the front line of the Obama Administration's equal pay initiatives. OFCCP's FY 2017 budget makes very clear that the Agency will focus on complex investigations of federal contractors in the financial services and technology sectors. Among other things, the Agency will be establishing two "Skilled Regional Centers" in San Francisco and New York with "highly skilled and specialized compliance officers capable of handling various large, complex compliance evaluations in specific industries, such as financial services or information technology." OFCCP is also eliminating its case closure targets and will take other steps to measure how its staff implements "its enforcement priorities of complex systemic compensation. . ." Until now, OFCCP has not identified particular sectors for such aggressive investigation.

This proposed focus is likely in response to increased scrutiny from government contractors regarding the process and efficiency of OFCCP efforts. Lauren Weber of the Wall Street Journal recently published an article emphasizing OCCFP's struggles to effectively investigate and settle discrimination cases. Weber suggests that the agency may have tried to exceed its limitations, explaining that prior to the Obama administration, "the OFCCP concentrated more on helping contractors comply with regulations [and that] it has taken time and money to gear up for the agency's aggressive role in protecting workers." However, despite the OFCCP's "comprehensive update to its sex-discrimination guidelines . . . the agency is completing fewer audits for compliance with antidiscrimination, its core task." As reported, government contractors argue that the "meager number of settlements suggests the agency has wasted resources tackling a problem that hardly exists." And while OFCCP supporters respond that this limited regulatory success underscores the complexity of fair-pay investigations, "[b]oth sides agree that the agency lacks the statistical and other expertise required to root out unequal pay."

On January 29, 2016, the Equal Employment Opportunity Commission (EEOC) also proposed an amendment to the Employer Information Report ("EEO-1"), which already aggregates data regarding employees' age, ethnicity, and sex. Under the proposed rule, beginning in September 2017, EEO-1 filers with 100 or more employees (both federal contractors and private industry) would be required to include two additional data components to EEO-1 reports: pay data and hours worked. The proposed rule calls for use of W-2 earnings as the source of the pay data, but not at the individual level. Rather, employers will be required to aggregate W-2 data in 12 pay bands for the 10 EEO-1 job categories. Employers will then count and report the number of employees in each pay band.

EEOC claims that the new data "would provide EEOC and [OFCCP] with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination." This assumption came under criticism at EEOC's March 16, 2016 public hearings on its data collection proposal. Among other things, critics pointed out that the proposed data collection will be much less specific than the individualized data that the OFCCP has long requested in such audits. Use of W-2 income data could also be inadequate because of the way certain types of non-traditional income, like stock options, are reported (or not reported). Moreover, the broad nature of jobs encompassed in EEO-1 categories will allow no meaningful look at the pay of workers who are in any way similarly situated in their skill, effort, and responsibility. As such, "false positives" may be abundant and investigating them will absorb valuable EEOC and employer resources that could instead be spent on more targeted and meaningful efforts.

Recent State Enforcement Efforts

Beyond the protections already provided and enforced under the EPA and Title VII, two states—California and New York—have enacted stringent equal pay legislation that significantly increase the burdens on employers to justify any pay disparity between men and women. The California Fair Pay Act (CFPA) (which we reported on here, here, and here) is now hailed as the nation's strongest equal pay protection law. New York's new law (reported on here) was enacted days later. And the momentum at the state level is growing. The National Women's Law Center issued a report in January 2016 highlighting the unprecedented level of activity in new state equal pay laws and legislation.

In September 2015, New Hampshire introduced a bill titled the Gender Advancement in Pay Act (S. 2070). If passed, the new law would: (1) require equal pay among men and women without reducing the opportunity for merit rewards; (2) require employers to prove there is "a business-related factor other than sex" for differences in pay (as opposed to "any factor other than sex" as under current law); (3) prohibit retaliation against employees for discussing (or not discussing) their pay information; and (4) create civil penalties for employers that willfully engage in sex-based pay discrimination. Fees collected under these civil penalties would be used to further study the pay gap nationwide.

In March 2016, New Jersey passed a bill to address the gender pay gap that would require equal pay for "substantially similar" work in terms of effort, skill, and responsibility. If not vetoed by New Jersey Governor Chris Christie (who has rejected similar legislation in the past) the new law would also retrigger the statute of limitations every time an allegedly discriminatory paycheck is issued, allow back pay for the duration of the discriminatory period, and prohibit employers from retaliating against employees who disclose pay-related job information. Additionally, employers would be prohibited from reducing the rate of compensation of any employee in order to comply with the law. Finally, the new law would require companies that enter in contracts with the State to report certain data, including information on gender, race, job title, and total compensation, for each employee working under the contract.

Similar to California's and New York's anti-retaliation provisions, Connecticut, New Hampshire, and Oregon have enacted equal pay laws that prohibit employers from retaliating against employees for discussing their wages with each other or in general. North Dakota recently passed a law requiring employers to maintain records of employee compensation for the length of an employee's tenure, and to report on these records upon inquiry from the state. Illinois amended its equal pay laws to expand coverage to employers with four or more employers and increase the amount of civil penalties available for equal-pay violations. Delaware, Minnesota, and Oregon now hold state contractors accountable for certifying their compliance with state and federal equal pay laws. Finally, Rhode Island has created a tip line for employees to report violations of the state's gender-based wage discrimination laws.

In addition to the legislation described above, nearly a dozen states either proposed or passed bills to address the pay gap in 2015, including California, Florida, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Ohio, Pennsylvania, South Carolina, and Washington. While many bills were vetoed before being enacted into law, there is a clear trend among states to address equal pay matters on a local level.


In just the past year, the country has seen a significant increase in federal enforcement and state legislation geared towards resolving gender discrimination and closing the pay gap. However, whether these results will be productive is yet to be seen. Historic results from OFCCP investigations and EEOC enforcement actions fail to show the number of violations that one would expect if employer pay bias were currently the overwhelming driving force behind the gender pay gap in the American workplace. This is not to suggest that pay bias has been eradicated. Rather, it suggests that the resolution of pay disparity warrants a closer look at other potential causes. This is important to consider as we reflect on pay equity today and in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
20 Sep 2018, Seminar, Tokyo, Japan

Orrick's Total Access Japan Event Series provides entrepreneurs business, tactical, and legal education through complimentary panels and seminars and networking events. The next event will take place on Thursday, September 20 from 6:00 pm to 7:30 pm.

21 Sep 2018, Conference, Florida, United States

Employment partner, Michael Weil will be participating in The Intellectual Property Law Institute’s 2018 Conference.

26 Sep 2018, Conference, New York, United States

Employment Partner, Mandy Perry and Chair of Orrick's Global Employment Law Practice, Mike Delikat will be participating in the Global Business Protections 2018: International Restrictive Covenants and Confidential Information Conference.

Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Fisher Phillips LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Fisher Phillips LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions