Title VII of the Civil Rights Act of 1964 (Title VII) explicitly forbids discrimination against an employee because of race, color, religion, sex, or national origin with respect to that employee's compensation and benefits. It also prohibits discrimination against employees in the matter of performance reviews and raises.

At its simplest, discrimination occurs under Title VII when an employer pays a black or female employee less than it pays a white or male employee for doing the same work. A Title VII violation may be found regardless of whether the discrimination occurs in setting different starting salary levels, different hourly wages, or different raises or bonuses. It is also a violation for an employer to treat employees differently on the basis of a protected classification with respect to the timing of performance reviews and periodic or merit raise decisions; this is because a practice of delaying these reviews could lead to the protected class employee receiving later and fewer raises than other employees.

Reverse discrimination is also prohibited. For example, it is illegal to pay a white employee less than a black employee when the pay difference is because of race.

Proving Compensation Discrimination

In a Title VII case, the plaintiff has the burden of proving that compensation discrimination has occurred. If the plaintiff is claiming that he or she has been treated differently than other employees, the plaintiff can point to a similarly situated employee outside the protected class who was paid more for doing the same type of work. The plaintiff must show intentional discrimination, and intent may be established through direct evidence or by inference. Alternatively, the plaintiff may attempt to show that the defendant's wage policies produced a pattern of paying employees of one group different from employees of another group.

Defenses to Compensation Discrimination

After the plaintiff proves that compensation discrimination has occurred, the employer has the opportunity to dispute the plaintiff's presentation of facts or to articulate a legitimate business reason for the wage discrepancy. There is no violation if the difference in pay is explained by differences in:

  • Length of service or seniority
  • Education or other qualifications
  • Experience
  • A valid difference in job category
  • Differences in duties, responsibilities, complexity of the work, productivity, skill, or some other legitimate nondiscriminatory factor

Pretext

Once the defendant has attempted to explain the wage disparity by articulating a legitimate nondiscriminatory reason for it, the plaintiff has an opportunity to show pretext, and that the employees' differences in pay were based on improper discrimination. The plaintiff can do this by showing:

  • That the advanced education or greater experience held by the higher paid employee was not needed for the job, or
  • That the asserted economic necessity of keeping wages low was not observed in the employer's decisions relating to other employees

Title VII vs. the Equal Pay Act

When the wage discrimination is alleged to be due to the sex of the employee, both Title VII and the Equal Pay Act (EPA) may come into play. However, coverage of Title VII is broader than that of the EPA:

  • The EPA covers only sex discrimination, while Title VII covers four other categories as well.
  • With respect to sex discrimination, for the EPA to apply, the work being compared must be substantially equal in effort, skill, and responsibility, and it must be performed under similar working conditions. Moreover, the jobs being compared must exist in the same establishment.
  • For Title VII to apply, it is sufficient if the jobs are similar enough for meaningful comparison. Rather than focusing on the EPA's ''substantial equality'' of jobs test, Title VII focuses on whether the employees being compared are ''similarly situated."

Questions for Your Attorney

  • Can I bring an action against my employer for discrimination if my employer gave me a smaller raise than my white co-worker?
  • How do I prove that my employer discriminated against me in compensation?
  • Can a white worker be awarded a bigger raise than a black worker on the basis of the white worker's qualifications?