How to Pursue a Wage Discrimination Claim

how to file a wage discrimination claimYou talked to your coworkers and discover they make more money than you- what can you do? With heightened national attention on the differences in pay between men and women, employees are now looking to their own salaries to see if whether or not they are receiving fair compensation. Many men and women that suspect they are not being paid the same as coworkers are still left unsure how to handle these suspicions and wonder whether it would be worth filing a lawsuit. If you feel that your pay is lower due to something other than a legitimate business reason, it is possible that you have a claim for wage discrimination.

There are several laws that protect employees from pay discrimination. Both the Equal Pay Act and Title VII of the Civil Rights Act require employers to provide the same pay and benefits to male and female employees. Title VII also prohibits wage discrimination on the basis of race, color, religion, sex, national origin, age, or disability. New Jersey recently passed one of the strongest equal pay legislations in the country, the Diane B. Allen Equal Pay Act, making it illegal for employers in the state to pay women and minorities less than their male counterparts. While these laws provide similar protections against wage discrimination, what is required to make a claim under each law differs.

Elements of a Wage Discrimination Claim and Employer Defenses

Equal Pay Act

To make a claim under the EPA, a plaintiff has to establish an initial case of discrimination by demonstrating:

  • The employer pays different wages to employees of the opposite sex;
  • The employees perform equal work on jobs requiring equal skill, effort, responsibility; and
  • The jobs are performed under similar working conditions

Once a plaintiff is able to meet these qualifications, they do not need to prove a discriminatory intent on the part of the employer. The burden of persuasion then shifts to the employer to justify the differences in pay. There are four affirmative defenses that employers can use to show that they did not engage in wage discrimination. An employer is allowed to pay similar employees differently if the differences are based on:

  • A seniority system that determines pay according to the length of service
  • A merit system that rewards employees for exceptional job performance
  • An incentive system or productivity system that rewards employees on the basis of the quality or quantity of their production.
  • A factor other than sex such as training, education, or experience

Title VII

In order to make a claim of wage discrimination under Title VII, a plaintiff must first establish aprima facie case by showing:

  • He or she is a member of a protected class (based on race, color, religion, sex, national origin);
  • Was qualified for the position;
  • Was subject to an adverse employment action such as failure to promote, termination of employment, cut in pay or benefits, or reassignment of duties; and
  • The employer gave better treatment to a similarly-situated person outside the plaintiff’s protected class

Unlike EPA, a plaintiff under Title VII must also show a discriminatory intent on behalf of the employer. Once a plaintiff has made this initial case, it is up to the employer to show that the adverse employment decision was due to a legitimate, non-discriminatory reason. The same defenses outlined in the Equal Pay Act are available to employers defending against a Title VII wage discrimination claim.

NJ Diane V. Allen Equal Pay Act

New Jersey’s new equal pay laws make it illegal for an employer to pay a member of any protected class at a lower rate than employees that are not part of the protected class. Under New Jersey’s Law Against Discrimination, protected classes include: race, creed, color, national origin, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, military service, mental or physical disability, and AIDS and HIV status. An employer is only permitted to pay a member of one of these protected classes less if the difference in pay is the result of a seniority system, a merit system, or if the employer can demonstrate that:

  • The difference is based on a legitimate bona fide factor other than a characteristic of the protected class such as training, education, experience, productivity;
  • The factors are not based on a protected characteristic;
  • Each factor is applied reasonably;
  • The factor accounts for the entire wage differential; and
  • The factor is job-related, based on legitimate business necessity.

How can I file a complaint?

If you feel that you have a potential wage discrimination claim under one of these laws, it is important to act quickly to file a complaint as there are several requirements and time limitations that must be met. Some types of discrimination complaints require that you first file a report with a federal agency, the Equal Opportunity Commission (“EEOC”), to investigate the claim before filling a lawsuit in court.

Equal Pay Act

Under the EPA, an employee is not required to file a complaint with the EEOC prior to filing suit in court. A plaintiff can go directly to court and file the lawsuit. Because Title VII also makes it illegal to discriminate based on sex in the payment of wages and benefits, it might be advantageous to also file suit under Title VII as well.

Title VII

A plaintiff alleging wage discrimination under Title VII must first file a charge of employment discrimination with the EEOC. A charge is a signed statement asserting that an organization engaged in employment discrimination against you, and it asks the EEOC to investigate and take remedial action on your behalf. After you file a charge with the EEOC, if you want to file a lawsuit in court you must wait for the EEOC to give you a Notice of Right to Sue after its investigation is complete. If you want to file a before the EEOC concludes its investigation, the EEOC is required to provide a Notice of the Right to Sue 180 days after the day you filed your charge.

NJ Diane B. Allen Equal Pay Act

There are two ways to pursue a wage discrimination claim in New Jersey: by filing with an administrative agency or filing a lawsuit in New Jersey state court. New Jersey’s administrative agency that handles claims of discrimination is the Division on Civil Rights (“DCR”). To pursue wage discrimination in court, you are not required to file with DCR first. It is important to note, however, that when you initiate an action with DCR, if the agency finds that your claim of discrimination has “no cause”, you will not be able to subsequently pursue that finding directly in state court. Because you cannot pursue your claim simultaneously in both state court and before DCR, it is wise to consult with an attorney regarding your options before taking action.

How Long do I have to file?

Equal Pay Act

The deadline to file a lawsuit under the EPA is two years from the day you last received a discriminatory paycheck. This deadline can be extended tothree years for cases of willful discrimination.

Title VII

You only have 180 calendar days from the day the discrimination took place to file a charge of discrimination until Title VII with the EEOC. If a state or local agency enforces a law that prohibits employment discrimination on the same basis, the time limit to file a charge extends to 300 calendar days. Once the EEOC has provided you with a Notice of the Right to Sue following its investigation, a lawsuit must be filed within 90 days.

NJ Diane B. Allen Equal Pay Act

New Jersey’s latest equal pay protections take effect on July 1, 2018, and have extended the period of time that a NJ plaintiff can pursue an equal pay lawsuit following an act of discrimination. An employee has six years from the last date of unequal pay to sue under the law. The law considers each unequal paycheck an employee receives as a separate instance of discrimination and the time limit will reset after each one is received. New Jersey’s new law creates a much longer window to file a lawsuit than the federal laws allow.

If you would like to file a complaint with DCR, the complaint must be made within 180 days of when you were discriminated against.

What kind of relief am I entitled to?

Depending on which laws the wage discrimination lawsuit is filed under there are different types of remedies available. When discrimination is found, the remedies provided are awarded to place the victim of discrimination in the same position they would have been if they had not been discriminated against.

Equal Pay Act and Title VII

Possible Remedies for a successful wage discrimination claim:

  • Salary increase
  • Back pay
  • Lost benefits such as health, vacation, sick leave, pension
  • Liquidated damages
  • Attorney fees and court costs

NJ Diane B. Allen Equal Pay Act

This law has expanded the amount of damages that wage discrimination victims may recover in a New Jersey equal pay lawsuit. Victims of discrimination can now collect treble damages (three times the amount of pay differentials) after a successful lawsuit.


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