The Blurry Limits of the Equal Pay Act's "Factor other than Sex": An Argument for Limiting the Use of Salary History and the Benefit to Employers
![handle is hein.journals/wflron11 and id is 21 raw text is: THE BLURRY LIMITS OF THE EQUAL PAY ACT'S
FACTOR OTHER THAN SEX: AN ARGUMENT FOR
LIMITING THE USE OF SALARY HISTORY AND THE
BENEFIT TO EMPLOYERS
Nicole Tronolone*
I. INTRODUCTION
President John F. Kennedy signed the Equal Pay Act into law on
June 10, 1963, remarking that such legislation constituted a
significant leap forward.1 Advocates of the bill heralded the
legislation as a matter of simple justice ensuring that there is no
longer any excuse for paying women less than men for performing the
same work, if there ever was any.2 Today, more than fifty years after
Congress enacted the legislation, the pay gap persists. In 1963, when
the law was enacted, women earned $0.59 to a dollar earned by men.3
In 2018, fifty-five years later, women earned only $0.81 to a dollar
earned by men-evidencing only meager progress towards closing the
gender pay gap.4 The persistence of the gap is, in part, created by the
sustained use of prior salary information in setting employee
compensation rates for new employees.5 Currently, federal courts are
split in their interpretation of a critical catch-all phrase in the Equal
Pay Act (EPA)-an exception that permits an employer to pay
individuals of different sexes disparate salaries for substantially
* J.D. Candidate 2021, Wake Forest University School of Law; International
Politics, B.S. 2016, Georgetown University. Thank you to the Board and Staff of
the Wake Forest Law Review for their time and effort on this Comment. I would
also like to thank my mother, Susan Foster, for reading countless drafts of this
Comment and listening to endless discussions on pay parity.
1. Beth Pearsall, 50 Years After the Equal Pay Act, Parity Eludes Us, AM.
ASS'N UNIV. WOMEN (Mar. 18, 2013), huos ww3.aauw.org/articlei50-years-after-
the-equalpuay act-uarity-eludes-us/.
2. 109 CONG. REC. 9213 (1963) (statement of Rep. Matsunaga).
3. Abby Lane & Katharine Gallagher Robbins, The Wage Gap Over Time,
NAT'L WOMEN'S L. CTR. (May 3, 2012), httus://nwlc.o /blo /wage-Zap-over-time/.
4. See Robin Bleiweis, Quick Facts About the Gender Wage Gap, CTR. AM.
PROGRESS (Mar. 24, 2020),
https://www. americanurogress. org/issues/women/reports/2020/03/24/482141/gui
ck-facts-gender-wage-goa/ (calculating the gender wage gap using 2018 data from
U.S. Census Bureau); see also KEVIN MILLER & DEBORAH J. VAGINS, THE SIMPLE
TRUTH ABOUT THE GENDER PAY GAP 5, 7 (2018),
httxl ://www.aauw.orlap up uoadsi2020102/ UW-2018-Simp]eTruth-nsa.pdf.
5. See MILLER & VAGINS, supra note 4, at 21.
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