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Miss Utah and the Equal Pay Act

She didn’t win the crown, but Miss Utah made the most news after the Miss USA pageant this summer. Her bungled response to a question about the gender pay gap went viral and was seen by millions on the Internet. But it also generated serious discussion about equal pay.   

'Create education better'

The question: “A recent report shows that in 40 percent of families with children, women are the primary earners, yet they continue to earn less than men. What does this say about society?”
Miss Utah’s answer: “I think we can relate this back to education and how we are continuing to try to strive to … [long pause] figure out how to create jobs right now—that is the biggest problem. And, I think, especially the men are, um, seen as the leaders of this and so we need to figure out how to create education better so that we can solve this problem.” Cringe.
Predictably, Miss Utah’s epic fail lit up the twitterverse and blogosphere. But she got a chance at Web redemption on the “Today” show a few days later. She told host Matt Lauer that the question was “confusing” to her. So he gave her a do-over. Her new (scripted and rehearsed) answer was far better: “So this is not okay, it needs to be equal pay for equal work, and it's hard enough already to earn a living and it shouldn't be harder just because you're a woman."
Miss Utah’s question was prompted by the 50th anniversary of the Equal Pay Act. The EPA prohibits an employer from paying lower wages to an employee of one gender than it pays to an employee of the other gender for equal work at jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions at the same establishment. However, the EPA does allow exceptions if the employer can show that the wages are set pursuant to a seniority system, a merit system, a pay system based on quantity or quality of production, or any other factor other than sex.
Unlike most discrimination laws, the EPA does not contain an intent requirement. Thus, an employer is strictly liable for a wage disparity between similarly situated employees of a different gender, unless it meets its burden of proving one of the four affirmative defenses. An employer may not reduce an employee’s wages to comply with the EPA’s equal-pay requirement.
An employer cannot justify paying women lower wages because that is what they traditionally received under the going market rate, the Supreme Court has said. Wage differentials that occur simply because women are willing to work at lower rates than men are unlawful.
Most employers today know it’s a no-no to pay men more than similarly situated women. But things happen in the workplace, sometimes unwittingly, that create gender pay gaps. Studies show that men are more likely than women to negotiate over starting salary or ask for a raise. This can cause significant pay disparities over time.
A different type of study published last year suggests that women may get lower raises because their managers believe they’ll handle it better than their male colleagues. “Research on stereotyping shows that people assume that women care more than men do about communality and belongingness and that men care more than women about their own attainment and self-interest,” the study’s author says. Thus, managers may think that women are better able to recognize the need for cutbacks and will not feel as personally offended as men if they receive small raises.
Organizations can do several things to guard against pay disparities. Require HR to review and approve all pay decisions as a check on management. Periodically have an employment lawyer (under attorney-client privilege) audit pay practices to identify and help correct any inequalities. And provide EEO training and guidance to managers and others who make pay decisions—or, as Miss Utah might put it, create education better.  

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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