Jottings By An Employer's Lawyer

Monday, June 10, 2013

The Equal Pay Act of 1963, The First Tentative Step

The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees.  When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.

In 1938, Congress had established some work place minimums, but even then it was as much a desire to help pull the country out of the depression as regulating the workplace. And with the limited exceptions that led to the 1947 Portal to Portal Act, the FLSA was a relatively minor player up until at least the 1980's.

The genesis for the Equal Pay Act arose when women entered the work force in greater numbers during the war years. As early as 1945, "The Women's Equal Pay Act of 1945," was introduced. Subsequent versions were introduced regularly but never gained traction.

In 1962, like the years before when the legislation was introduced, it was not "equal pay for equal work," but "equal pay for comparable worth," a much broader concept that would be fought again later.

The comparable worth standard was strongly backed by the Kennedy administration and actually passed out of the House Committee. But on the floor,  Representative Katharine St. George, (R-NY) offered an amendment defining equal pay act claims as those "for equal work on jobs, the performance of which requires equal skills." The Senate concurred with the St. George amendment, but the bill failed to come out of conference and so it was not finally adopted until the next Congress.

This time, the bill was introduced with the St. George amendment, dealing with the specific (and much narrower) situation where employers would hire men and women for the same position, but relying on societal and market norms, pay women less. 

The bill was signed by President Kennedy, 50 years ago today.  The current version can be found here, The Equal Pay Act of 1963 (EPA).

One procedural aspect of the EPA was that it was drafted as an amendment to the FLSA, and in its early years contained the same white collar exemptions, a limitation not removed until 1972.

The EPA was a limited piece of legislation and was quickly overshadowed by the much broader Civil Rights Act of 1964, passed one year later.

But if nothing else it marked a major shift in Congress' willingness to enter the relationship between an employer and their employees.  My personal view is that employment law as a discipline, really begins with the passage of the CRA.

But if the EPA was not the baby that started employment law, it was at least the twinkle in Congress' collective eye.

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