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The EEOC Speaks: Pay Discrimination – Barriers and Suggested Actions

By Fiona W. Ong - Shawe Rosenthal LLP

May 25, 2022

In this third (and final) post of our mini-series based on the Equal Employment Opportunity Commission’s pay discrimination article, we’ll take a look at the barriers to pay equity identified by the EEOC and their suggestions for preventing pay discrimination. As previously noted, the EEOC issues a quarterly digest of EEO law that sometimes includes an article, like this one, providing insight into the EEOC’s approach to (and expansion of!) discrimination protections for employees. Again, while the EEOC’s article is focused on the federal workplace, many of their observations and action items are equally applicable to the private workplace. Our first post discussed pay discrimination claims under the Equal Pay Act and Title VII, and the second addressed the intersectionality and sex-plus discrimination theories. So now we move from the legal theories to the practical considerations.

Barriers to Pay Equity. The EEOC convened two workgroups – one to identify challenges to equal employment opportunities in the federal workplace for African Americans, and the other for women. Private employers may recognize some of these same barriers in their own workplaces, or should consider whether similar obstacles exist.

As to African American employees, the workgroup identified the following obstacles: (1) unconscious biases and perceptions about African Americans; (2) lack of mentoring and networking opportunities for higher level positions; (3) insufficient training and developmental assignments; (4) use of narrow recruitment methods; (5) the perception of widespread inequality among African Americans in the workforce; (6) educational requirements; and (7) EEO regulations, laws and policies were not often adhered to and enforced.

As to female employees, the workgroup found the following barriers: (1) inflexible workplace policies created challenges for women with caregiver obligations; (2) higher level and management positions remained harder to obtain for women; (3) women are underrepresented in science, technology, engineering, and mathematics (STEM) fields in the federal sector; (4) women and men do not earn the same average salary in the federal government; (5) unconscious gender biases and stereotypical perceptions about women still play a significant role in employment decisions in the federal sector; and (6) the perception that federal agencies lack commitment to achieving equal opportunities for women.

The EEOC also offers specific examples of such barriers, which may also be present in private workplaces:

•    An employer pays employees in a protected class less than similarly situated employees outside the protected class, and the employer’s explanation (if any) does not satisfactorily account for the differential;
•    An employer maintains a compensation policy or practice that is neutral on its face, but has a disparate impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity;
•    An employer sets the pay for jobs predominantly held by protected class members below that suggested by the employer’s job evaluation study, while the pay for jobs predominantly held by employees outside the protected class is consistent with the level suggested by the job evaluation study;
•    A discriminatory compensation system has been discontinued, but salary disparities caused by the system have not been eradicated; or
•    The compensation of one or more employees in a protected class is artificially depressed because of a discriminatory employer practice that affects compensation, such as steering employees in a protected class to lower paid jobs than persons outside the class, or discriminating in promotions, performance appraisals, procedures for assigning work, or training opportunities.

Practical Steps. In its article, the EEOC references Executive Order 14035, “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce,” which was signed by President Biden in June 2021 and which directs federal agencies to take the following actions to combat pay discrimination in the workplace:

•    Offer bias training to all employees covering what bias is, how to recognize it, and what to do about it;
•    Establish mentoring programs;
•    Provide opportunities for meaningful work assignments, including Acting Supervisor positions and detail assignments;
•    Abolish salary history;
•    Establish meaningful paths to advancement, such as pathway programs;
•    Provide necessary accommodations outright instead of as an afterthought;
•    Provide paid internships;
•    Provide work flexibility, such as alternate work schedules and telework;
•    Add inclusive practices in performance ratings;
•    Advertise available positions throughout the agency or workplace;
•    Establish Agency succession plans;
•    Establish educational reimbursement programs;
•    Demonstrate a commitment to equal employment from the top of the Agency down; and
•    Discipline supervisors and employees who have been found to discriminate against underserved employees.

Again, while these actions are directed to federal agencies, they include common-sense and practical suggestions that may be helpful for private employers seeking to redress or prevent pay discrimination in their workplaces. Obviously not all steps may be necessary or appropriate for a particular employer, and others may need to be tailored for the specific situation. Moreover, we suggest that documented and thoughtful consideration of such steps – as identified by the EEOC – and implementation of appropriate actions would certainly provide a strong defense against any pay discrimination claim that may arise.

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