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wage rate differentials which are based on sex; pends rather on actual job requirements and pernothing in the equal pay provisions is intended to formance. For example, the fact that jobs prohibit differences in wage rates that are based performed by male and female employees may not at all on sex but wholly on other factors. (See have the same total point value under an evaluaS. Rept. No. 176, 88th Cong. 1st sess., p. 4; H. Rept. tion system in use by the employer does not in No. 309, 88th Cong. 1st sess., p. 2.)

itself mean that the jobs concerned are equal ac

cording to the terms of the statute. Conversely, Section 800.120.-Effect of differences between

although the point values allocated to jobs may jobs in general.

add up to unequal totals, it does not necessarily There is evidence that Congress intended that

follow that the work being performed in such jobs of the same or closely related character should

jobs is unequal when the statutory tests of the be compared in applying the equal pay for equal

equal pay standard are applied. Job titles are work standard (Daily Congressional Record,

frequently of such a general nature as to provide House, May 23, 1963, pp. 8686, 8698). Jobs that

very little guidance in determining the applicarequire equal skill, effort, and responsibility in

tion of the equal pay standard. For example, the their performance within the meaning of the Act

job title “clerk” may be applied to employees who are usually not identical in every respect (Daily

perform a variety of duties so dissimilar as to Congressional Record, Senate, May 28, 1963, p. place many of them beyond the scope of compari9219). Congress did not intend that inconse

son under the statute. Similarly, jobs included quential differences in job content would be a valid

under the title “stock clerk” may include an emexcuse for payment of a lower wage to an em

ployee of one sex who spends all or most of his ployee of one sex than to an employee of the

working hours in shifting and moving goods in opposite sex if the two are performing equal work

the establishment whereas another employee, of on essentially the same jobs in the same establish

the opposite sex, may also be described as a "stock ment. It will be remembered in this connection

clerk” but be engaged entirely in checking inventhat the National War Labor Board (to the experi

tory. Clearly, the equal pay standard would not ence of which attention is directed in the Senate

apply where jobs require such substantially difand House Committee Reports) developed a policy

ferent duties, even though the job titles are identiof ignoring inconsequential differences in job con

cal. In other situations, including those which tent in administering equal pay for equal work

exist in the case of jobs identified by the general provisions (Brown & Sharp Manufacturing Co.

title "retail clerks", the facts may show that equal Case No. 2228-D, Sept. 25, 1942). On the other

skill, effort, and responsibility are required in the hand, it is clear that Congress did not intend to

jobs of male and female employees notwithstandapply the equal pay standard to jobs substantially

ing they are engaged in selling different kinds of differing in their terms and conditions. Thus, the

merchandise. In all such situations, the applicaquestion of whether a female bookkeeper should

tion of the equal pay standard will have to be debe paid as much as a male file clerk required to

termined by applying the terms of the statute to perform a substantially different job is outside

the full factual situation. the purview of the equal pay provisions. It is also clear that the equal pay standard is not to be ap Section 800.122.-General guides for testing plied where only men are employed in the estab equality of jobs. lishment in one job and only women are employed (a) What constitutes equal skill, equal effort, in a dissimilar job. For example, the standard

or equal responsibility cannot be precisely defined. would not apply where only women are employed

In interpreting these key terms of the statute, the in clerk typist positions and only men are em

broad remedial purpose of the law must be taken ployed in jobs as administrative secretaries if the

into consideration. The terms are considered to latter really require substantially different duties.

constitute three separate tests, each of which must Section 800.121.-Job content controlling. be met in order for the equal pay standard to ap

Application of the equal pay standard is not ply. In applying the tests it should be kept in dependent on job classifications or titles but de mind that "equal" does not mean “identical"

(Daily Congressional Record, Senate, May 28, Such a conclusion would be especially inappro1963, p. 9219). Insubstantial or minor differences priate if the employees of the sex to whom the in the degree or amount of skill, or effort, or re less skilled work was assigned received a higher sponsibility required for the performance of jobs rate of pay. There are, of course, situations in will not render the equal pay standard inapplica which a review of all the pertinent facts will ble. On the other hand, substantial differences, clearly establish that the male and female emsuch as those customarily associated with differ ployees in question are not performing equal work ences in wage levels when the jobs are performed on jobs which are equal in their requirements of by persons of one sex only, will ordinarily demon skill, effort, and responsibility, and which are perstrate an inequality as between the jobs justifying formed under similar working conditions. Where differences in pay. In determining whether job it is clear that this is so, the existence or extent of differences are so substantial as to make jobs un a wage differential between employees of opposite equal, it is pertinent to inquire whether and to sexes cannot of itself provide a basis for holding what extent significance has been given to such an employer liable for violations under the providifferences in setting the wage levels for such sions of section 6(d) of the Act. jobs. Such an inquiry may, for example, disclose

Section 800.123.-Determining equality of job that apparent differences between jobs have not

content in general. been recognized as relevant for wage purposes and that the facts as a whole support the conclusion

In determining whether differences in job conthat the differences are too insubstantial to pre

tent are substantial in order to establish whether vent the jobs from being equal in all significant

or not employees are performing equal work respects under the law.

within the meaning of the Act, the amounts of (b) To illustrate, where employees of opposite

time which employees spend in the performance of

different duties are not the sole criteria. It is also sexes are employed in jobs in which the duties they

necessary to consider the degree of difference in are required to perform and the working conditions are substantially the same, except that an

terms of skill, effort, and responsibility. These

factors are related in such a manner that a general employee of one sex is required to perform some

standard to determine equality of jobs cannot be duty or duties involving a higher skill which an employee of the other sex is not required to per

set up solely on the basis of a percentage of time. form, the fact that the duties are different in this

Consequently, a finding that one job requires emrespect is insufficient to remove the jobs from the

ployees to expend greater effort for a certain perapplication of the equal pay standard if it also

centage of their working time than employees appears that the employer is paying a lower wage

performing another job, would not in itself estab

lish that the two jobs do not constitute equal work. rate to the employee performing the additional duties notwithstanding the additional skill which

Similarly, the performance of jobs on different

machines or equipment would not necessarily rethey involve. In other situations, where employees of opposite sex are employed in jobs which

sult in a determination that the work so performed are equal in the levels of skill, effort, and respon

is unequal within the meaning of the statute if the sibility required for their performance, it may

equal pay provisions otherwise apply. If the difbe alleged that the assignment to employees of

ference in skill or effort required for the operation one sex but not the other of certain duties requir

of such equipment is inconsequential, payment of a ing less skill makes the jobs too different for

higher wage rate to employees of one sex because comparison under the equal pay provisions. But

of a difference in machines or equipment would so long as the higher level of skill is required for

constitute a prohibited wage rate differential. the performance of the jobs occupied by employees

Likewise, the fact that jobs are performed in difof both sexes, the fact that some of the duties as ferent departments or locations within the estabsigned to employees of one sex require less skill lishment would not necessarily be sufficient to than the employee must have for the job as a whole demonstrate that unequal work is involved where does not warrant any conclusion that the jobs are the equal pay standard otherwise applies. This is outside the purview of the equal pay standard. particularly true in the case of retail establish

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ments, and unless a showing can be made by the employer that the sale of one article requires such a higher degree of skill or effort than the sale of another article as to render the equal pay standard inapplicable, it will be assumed that the salesmen and saleswomen concerned are performing equal work. Although the equal pay provisions apply on an establishment basis and the jobs to be compared are those in the particular establishment, all relevant evidence that may demonstrate whether the skill, effort, and responsibility required in the jobs at the particular establishment are equal should be considered, whether this relates to the performance of like jobs in other establishments or not. Section 800.124.-Comparing "exempt” and

"nonexempt" jobs. Situations sometimes arise in which it is alleged that lower wages are being paid, in violation of the Act, to a nonexempt employee than to an exempt employee of the opposite sex for equal work on jobs said to be equal within the meaning of the Act. Usually it is necessary in such a case to scrutinize carefully the respective job requirements, working conditions, and pay arrangements before it is possible to reach an informed judgment as to the existence of any violation of the Act. To illustrate, .suppose it is alleged that employees of opposite sexes are performing equal work within the meaning of the Act and that a wage discrimination on account of sex exists because one of such employees, but not the other, is paid the minimum compensation on a salary basis which is required for exemption as a bona fide executive or administrative employee and is treated by the employer as such an exempt employee under section 13(a)(1) of the

Act and the regulations in 29 CFR Part 541. In such a case, regard must be had to the fact that the regulations define an employee employed in a bona fide executive or administrative capacity in terms of the coexistence of a number of factors, only one of which is the receipt of compensation in a specified minimum amount on a salary basis. The existence of all these factors must be verified to determine whether the employer is correct in treating the employee who receives such salary as exempt. Regard must also be had to the fact that an employee who qualifies for exemption, because all the factors required by the regulations coexist, may be required to work as many hours as the employer may be able to persuade him to work for the stated salary, without any necessity of compliance by the employer with the minimum wage, equal pay or overtime compensation requirements of the Act. This is important because the fact that another employee of the opposite sex doing similar work does not receive the salary requisite for an exemption under the regulations would not in all cases mean that such employee is being paid at a lower rate of pay. In fact, because the nonexempt employee must receive at least the minimum wage for every hour worked and the prescribed additional compensation at the specified multiple of the regular rate for every such hour in excess of the applicable maximum workweek, it is possible, depending on the length of the workweek, that the pay in the nonexempt job may exceed the salary paid in the exempt job for the identical number of hours worked. For these reasons, a comparison of exempt and nonexempt jobs requires careful examination of all the facts and does not lend itself to the application of any general rules.


Section 800.125.-Jobs requiring equal skill in

performance. The jobs to which the equal pay standard is applicable are jobs requiring equal skill in their performance. Where the amount or degree of skill required to perform one job is substantially greater than that required to perform another job, the equal pay standard cannot apply even though the jobs may be equal in all other respects. Skill includes consideration of such factors as experience,

training, education, and ability. It must be measured in terms of the performance requirements of the job. If an employee must have essentially the same skill in order to perform either of two jobs, the jobs will qualify under the Act as jobs the performance of which requires equal skill, even though the employee in one of the jobs may not exercise the required skill as frequently or during as much of his working time as the employee in the other job. Possession of a skill not needed to meet require

ments of the job cannot be considered in making a
determination regarding equality of skill. The
efficiency of the employee's performance in the job
is not in itself an appropriate factor to consider
in evaluating skill.
Section 800.126.-Comparing skill requirements

of jobs.
As a simple illustration of the principle of equal
skill, suppose that a man and a woman have jobs
classified as typists. Both jobs require them to
spend two-thirds of their working time in typing
and related activities, such as proofreading and
filing, and the remaining one-third in diversi-
fied tasks, not necessarily the same. Since there
is no difference in the skills required for most of
their work, whether or not these jobs require equal
skill in performance will depend upon the nature
of the work the employees must actually perform
during this latter period to meet the requirements
of the jobs. If it happens that the man, during

the remaining one-third of the time, spends twice
as much time operating a calculator as does the
woman who prefers and is allowed to do most
of the copying work required in the office, this
would not preclude a conclusion that the per-
formance of the two jobs requires equal skill if
there is actually no distinction in the performance
requirements of such jobs so far as the skills uti-
lized in these tasks are concerned. Even if the man
were required to do all of the calculating work
in order to perform his job, it is not at all apparent
that the jobs would require substantially different
degrees of skill unless it should appear that opera-
tion of that calculator requires more training and
can command a higher wage than the typing and
related work performed by both the man and the
woman, and that the work required to be done by
the woman in the remaining one-third of the time
requires less training and is recognized as com-
manding a lower wage whether performed by a

man or a woman.


Section 800.127.

Jobs requiring equal effort in part of his time carrying out heavy packages or performance.

replacing stock involving the lifting of heavy

items whereas a female checker is required to The jobs to which the equal pay standard is applicable are jobs that require equal effort to per devote an equal degree of effort during a similar form. Where substantial differences exist in the portion of her time to performing fill-in work reamount or degree of effort required to be expended quiring greater dexterity such as rearranging in the performance of jobs, the equal pay stand displays of spices or other small items. The differard cannot apply even though the jobs may be

ence in kind of effort required of the employees equal in all other respects. Effort is concerned does not appear to make their efforts unequal in with the measurement of the physical or mental any respect which would justify a wage differen

tial, where such differences in kind of effort exexertion needed for the performance of a job. Where jobs are otherwise equal under the Act, pended to perform the job are not ordinarily conand there is no substantial difference in the amount sidered a factor in setting wage levels. Further, or degree of effort which must be expended in

the occasional or sporadic performance of an acperforming the jobs under comparison, the jobs tivity which may require extra physical or mental may require equal effort in their performance even

exertion is not alone sufficient to justify a finding though the effort may be exerted in different ways of unequal effort. Suppose, however, that men on the two jobs. Differences only in the kind of and women are working side by side on a line aseffort required to be expended in such a situation sembling parts. Suppose further that one of the will not justify wage differentials.

men who performs the operations at the end of the

line must also lift the assembly, as he completes Section 800.128.-Comparing effort require

his part of it, and places it on a waiting pallet. ments of jobs.

In such a situation, a wage rate differential might To illustrate the principle of equal effort ex be justified for the person (but only for the pererted in different ways, suppose that a male checker son) who is required to expend the extra effort in employed by a supermarket is required to spend the performance of his job, provided that the extra

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Section 800.129.-Jobs requiring equal re

sponsibility in performance. The jobs to which the equal pay standard applies are jobs in the performance of which equal responsibility is required. Responsibility is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation. Differences in the degree of responsibility required in the performance of otherwise equal jobs cover a wide variety of situations. The following illustrations in section 800.130, which are by no means exhaustive, may suggest the nature or degree of differences in responsibility which will constitute unequal work. Section 800.130.-Comparing responsibility re

quirements of jobs. (a) There are many situations where one employee of a group performing jobs which are equal in other respects is required from time to time to assume supervisory duties for reasons such as the absence of the regular supervisor. Suppose, for instance, that it is the employer's practice to pay a higher wage rate to such a “relief” supervisor with the understanding that during the intervals in which he performs supervisory duties he is in training for a supervisory position. In such a situation, payment of the higher rate to him might well be based solely on the additional responsibility required to perform his job and the equal pay provisions would not require the same rates to be paid to an employee of the opposite sex in the group who does not have an equal responsibility. There would clearly be no question concerning such a wage rate differential if the employer pays the higher rate to both men and women who are


from time to time to assume such su-
pervisory responsibilities.

(b) Other differences in responsibilities of employees in generally similar jobs may require similar conclusions. Sales clerks, for example, who are engaged primarily in selling identical or similar merchandise may be given different responsibilities. Suppose that one employee of such a group (who may be either a man or a woman) is authorized and required to determine whether to accept payment for purchases by personal checks of customers. The person having this authority to accept personal checks may have a considerable additional degree of responsibility which may materially affect the business operations of the employer. In this situation, payment of a higher wage rate to this employee would be permissible.

(c) On the other hand, there are situations where one employee of the group may be given some minor responsibility which the others do not have (e.g., turning out the lights in his department at the end of the business day) but which is not of sufficient consequence or importance to justify a finding of unequal responsibility. As another example of a minor difference in responsibility, suppose that office employees of both sexes work in jobs essentially alike but at certain intervals a male and female employee performing otherwise equal work within the meaning of the statute are responsible for the office payroll. One of these employees may be assigned the job of checking time cards and compiling the payroll list. The other, of the opposite sex, may be required to make out paychecks, or divide up cash and put the proper amounts into pay envelopes after drawing a payroll check. In such circumstances, although some of the employees' duties are occasionally dissimilar, the dif

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