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ference in responsibility involved would not appear to be of a kind that is recognized in wage administration as a significant factor in determining wage rates. Under such circumstances, this

difference would seem insufficient to justify a wage rate differential between the man's and the woman's job if the equal pay provisions otherwise apply.


Section 800.131.-Jobs performed under similar

working conditions. In order for the equal pay standard to apply, the jobs must be performed under similar working conditions. It should be noted that the statute adopts the flexible standard of similarity as a basis for testing this requirement. In determining whether the requirement is met, a practical judgment is required in the light of whether the differences in working conditions are the kind customarily taken into consideration in setting wage levels. The mere fact that jobs are in different departments of an establishment will not necessarily mean that the jobs are performed under dissimilar working conditions. This may or may not be the

tions. However, in situations where some employ-
ees performing work meeting these standards have
working conditions substantially different from
those required for the performance of other jobs
the equal pay principle would not apply. For ex-
ample, if some sales persons are engaged in selling
a product exclusively inside a store and others em-
ployed by the same establishment spend a large
part of their time selling the same product away
from the establishment, the working conditions
would be dissimilar. Also, where some employees
do repair work exclusively inside a shop while
others employed by the shop spend most of their
time doing similar repair work in customers'
homes, there would not be similarity in working
conditions. On the other hand, slight or inconse-
quential differences in working conditions that are
essentially similar would not justify a differential
in pay. Such differences are not usually taken
into consideration by employers or in collective
bargaining in setting wage rates.
Sections 800.133-800.139.[Reserved]


Section 800.132.-Determining similarity of

working conditions.
Generally, employees performing jobs requiring
equal skill, effort, and responsibility are likely to
be performing them under similar working condi-


Section 800.140.—The specified exceptions.

Section 6(d) (1) of the Act provides three spe-
cific exceptions and one broad general exception
to its general standard requiring that employees
doing equal work be paid equal wages, regardless
of sex. Under these exceptions, where it can be
established that a differential in pay is the result
of a wage payment made pursuant to a seniority
system, a merit system, a system measuring earn-
ings by quantity or quality of production, or
that the differential is based on any other factor
other than sex, the differential is expressly ex-
cluded from the statutory prohibition of wage
discrimination based on sex. The legislative intent
was stated to be that any discrimination based
upon any of these exceptions shall be exempted
from the operation of the statute. These excep-

tions recognize, as do the reports of the legislative committees, that there are factors other than sex that can be used to justify a wage differential, even as between employees of opposite sexes performing equal work on jobs which meet the statutory tests of equal skill, effort, and responsibility, and similar working conditions. (See H. Rept. No. 309, S. Rept. No. 176, 88th Congress 1st sess.) Section 800.141.-Establishing application of

an exception. (a) The facts necessary to establish that a wage differential has a basis specified in any of the foregoing exceptions are peculiarly within the knowledge of the employer. If he relies on the excepting language to exempt a differential in pay from the operation of the equal pay provisions, he will

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be expected to show the necessary facts. Thus, 330 U.S. 545; Mitchell v. Kentucky Finance Co., such a showing will be required to demonstrate 359 U.S. 290.) On balance, it would be difficult that a payment of wages to employees at a rate less to conclude from the legislative history that it than the rate at which he pays employees of the op was the intent of Congress to supersede this estabposite sex is based on a factor other than sex where lished rule by applying a different rule to these it appears that such payments are for equal work provisions than to other exemptions from section on jobs the performance of which requires equal 6 or 7. The House committee report emphasized skill, effort, and responsibility, and which are per that the “now familiar system of * * * adminisformed under similar working conditions within tration, and enforcement, * ** will be utilized the meaning of the statute. After careful exami fully to complement the new provision” and many nation of the legislative history and the judicial statements in the legislative debates as well as the precedents, this is believed to be the most reason report of the Senate committee further indicate a able construction of the law and the one which well-understood legislative intent to apply and will be approved by the courts. However, be enforce the equal pay provisions in a manner concause there is some legislative history that could sistent with the familiar procedures traditionally support a different view, the reasons for reaching followed under the Act in the administration and the foregoing conclusions are explained in some enforcement of its labor standards. (H. Rept. detail in paragraph (b) of this section.

No. 309, S. Rept. No. 176, 88th Cong. 1st sess.; (b) The legislative history of the Equal Pay Daily Congressional Record, House, May 23, 1963, Act amendments to the Fair Labor Standards Act pp. 8692, 8705; Daily Congressional Record, includes some statements in the House debate, by a Senate, May 28, 1963, pp. 9219–9220). Also permember of the House committee who was an active tinent is the understanding expressed by the House sponsor of the legislation in the form approved sponsors that a "bona fide program” that "does by the committee, expressing a view differing not discriminate on the basis of sex will serve as from that stated in paragraph (a) of this section. a valid defense to a charge of discrimination" (H. The opinion expressed in these statements appears Rept. No. 309, 88th Cong. 1st sess.; Daily Congresto be that the burden of establishing a prima facie sional Record, House, May 23, 1963, p. 8685) and case of violation of the equal pay provisions in the clarifying remarks of the subcommittee chaircludes not only a showing of the facts necessary man managing the House-passed legislation in the to establish a failure to comply with the Act's Senate, who said: “The employer's defense, if it general standard, but also a showing that ng facts is based on an employer's plan, must be a bona exist that could bring the wage differential within fide one; and the burden of demonstrating the an exception. In this view, the employer would legitimacy of that defense will rest upon the emnot have to show facts necessary to prove the ex ployer.” (Daily Congressional Record, Senate, ception as an affirmative defense (Daily Congres May 28, 1963, p. 9219). On review of the legissional Record, House, May 23, 1963, p. 8698). lative history as a whole, therefore, the most reaBut if the exceptions are intended to have an ex sonable conclusion appears to be that the position empting effect, as was indicated by House com expressed in paragraph (a) of this section is the mittee spokesmen (H. Rept. No. 309, 88th Cong., better view, and that it is consistent with the legis1st sess., p. 3; statement of Subcommittee Chair

lative intent to consider the statutory exceptions, man Thompson, Daily Congressional Record,

like other exemptions from section 6, as matters of House, May 23, 1963, p. 8685), it seems plain that

affirmative defense and to require an employer a view such as that expressed above is not con

who believes he comes within them to show facts sistent with the general rule established by the

establishing that this is so. courts that the application of an exemption under this Act is a matter of affirmative defense and Section 800.142.- Sex must not be a factor in

excepted wage differentials. the employer urging such an exemption has the

While differentials in the payment of wages are burden of showing that it applies. (See Phillips v. Walling, 334 U.S. 490; Arnold v. Kanowsky, permitted when it can be shown that they are 361 U.S. 388; Walling v. General Industries Co., based on a seniority system, a merit system, a sys

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tem measuring earnings by quantity or quality of hour), then it would seem necessary to show some production, or on any other factor other than sex, other factor other than sex as the basis for the the requirements for such an exception are not unexplained portion of the wage differential bemet unless the factor of sex provides no part of fore a conclusion that there is no wage discriminathe basis for the wage differential. If these con tion based on sex would be warranted. To ditions are met, the fact that application of the illustrate further, a compensation plan which prosystem for measuring earnings results in higher vides for a higher rate of commission, "draw”, adaverage earnings for employees of one sex than vance or guarantee for sales employees of one sex for employees of the opposite sex performing than for employees of the opposite sex performequal work would not constitute a prohibited wage ing "equal work” would be in violation of the equal differential. However, to come within the exempt pay provisions of the Act unless the employer can ing provisions, any system or factor of the type establish that the differential in pay is pursuant to described pursuant to which a wage rate differen a seniority system, a merit system, or a system tial is paid must be applied equally to men and mcasuring earnings by quantity or quality of prowomen whose jobs require equal skill, effort, and duction, or is based on any other factor other than responsibility, and are performed under similar sex. A compensation plan which provides for a working conditions. Any evaluation, incentive, "draw” based on a percentage of each employee's or other payment plan which establishes separate earnings during a specified prior period would not and different male rates" and "female rates" with be in violation of the equal pay provisions of the out regard to job content will be carefully ex

Act if the plan is applied equally to men and amined to determine if these rate differentials are women. However, for all men to receive a higher based on sex in violation of the equal pay require draw, because it is the employer's experience that ments.

men generally earn more in commissions than

women, would not be sufficient indication that the Section 800.143.- Establishing absence of sex

differential is based on a factor other than sex. as a factor.

Section 800.144.-Excepted "systems". A showing that a wage differential is based on a factor other than sex, so as to come within one The exceptions for a seniority “system”, a merit of the exceptions in section 6(d)(1), may some "system”, and a “system” for measuring earnings times be incomplete without a showing that there by quantity or quality of work are not restricted to, is a reasonable relationship between the amount although they include, formal systems or systems of the differential and the weight properly attrib or plans that are reduced to writing. Such formal utable to the factor other than sex. To illustrate, or written systems or plans may, of course, provide suppose that male clerks who work 40 hours each better evidence of the actual factors which provide week and female clerks who work 35 hours each a basis for a wage differential, but any informal or week are performing equal work on jobs the per unwritten system or plan which can be shown to formance of which requires equal skill, effort, and provide the basis for differentials in wage rates responsibility, and which are performed under

because of seniority, merit, or quantity or quality similar working conditions. If they are paid of production may qualify under the statutory weekly salaries for this work, a differential in the language if it can be demonstrated that the standamounts could be justified as based on a difference

ards or criteria applied under it are applied purin hours of work, a difference based on a factor suant to an established plan the essential terms and other than sex which the chairman of the House conditions of which have been communicated to subcommittee stated would "be exempted under the affected employees. this act.” (Daily Congressional Record, House,

Section 800.145.-Application of exceptions ilp. 8685, May 23, 1963.) But if the difference in

lustrated, in general. salaries paid is too great to be accounted for by the difference in hours of work, as where the male

When applied without distinction to employees clerks are paid $90 for their 40-hour week (equal

of both sexes, shift differentials, incentive payto $2.25 an hour) and the female clerks receive

ments, production bonuses, performance and lononly $70 for their 35-hour week (equal to $2.00 an

gevity raises and the like will not result in equal

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pay violations. For example, in an establishment where men and women are employed on a job, but only men work on the night shift for which a night shift differential is paid, such a differential would not be prohibited. However, the payment of a higher hourly rate to all men on that job for all hours worked because some of the men may occasionally work nights would result in a prohibited wage differential. The examples (in the sections following) illustrate a few applications of the exception provisions. Section 800.146.-Examples—“red circle” rates,

in general. The term "red circle” rates describes certain unusual, higher than normal, wage rates which are maintained for many reasons. An example of the use of a “red circle” rate might arise in a situation where a company wishes to transfer a long-service male employee, who can no longer perform his regular job because of ill health, to different work which is now being performed by women. Under the “red circle” principle the employer may continue to pay the male employee his present salary, which is greater than that paid to the women employees, for the work both will be doing. Under such circumstances, maintaining an employee's established wage rate, despite a reassignment to a less demanding job, is a valid reason for the differential even though other employees performing the less demanding work would be paid at a lower rate, since the differential is based on a factor other than sex. However, where wage rate differentials have been or are being paid on the basis of sex to employees performing equal work, rates of the higher paid employees may not be “red circled” in order to comply with the Act. To allow this would only continue the inequities which the Act was intended to cure. Section 800.147.-Examples-temporary reas

signments. For a variety of reasons an employer may require an employee, for a short period, to perform the work of a job classification other than the employee's regular classification. If the employee's rate for his regular job is higher than the rate usually paid for the work to which he is temporarily reassigned, the employer may continue to pay him the higher rate, under the “red circle” principle. For instance, an employer who must

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reduce help in a skilled job may transfer employees to less demanding work without reducing their рау, , in order to have them available when they are again needed for their former jobs. Although employees traditionally engaged in performing the less demanding work would be paid at a lower rate than those employees transferred from the more skilled jobs, the resultant wage differential would not constitute a violation of the equal pay provisions since the differential is based on factors other than sex. This would be true during the period of time for which the "red circle" rate is bona fide. (See sec. 800.146.) Temporary reassignments may also involve the opposite relationship of wage rates. Thus, an employee may be required, during the period of temporary reassignment, to perform work for which employees of the opposite sex are paid a higher wage rate than that paid for the duties of the employee's regular job classification. In such a situation, the employer may continue to pay the reassigned employee at the lower rate, if the rate is not based on quality or quantity of production, and if the reassignment is in fact a temporary one. If a piece rate is paid employees of the opposite sex who perform the work to which the employee in question is reassigned, failure to pay that employee the same piece rate paid such other employees would raise questions of discrimination based on sex. Also, failure to pay the higher rate to the reassigned employee after it becomes known that the reassignment will not be of a temporary nature would raise a question whether sex rather than the temporary nature of the assignment is the real basis for the wage differential. Generally, failure to pay the higher rate for a period longer than one month will raise questions as to whether the reassignment was in fact intended to be a temporary one. Section 800.148.-Examples-training pro

grams. Employees employed under a bona fide training program may, in the furtherance of their training, be assigned from time to time to various types of work in the establishment. At such times, the employee in training status may be performing equal work with nontrainees of the opposite sex whose wages or wage rates may be unequal to those of the trainee. Under these circumstances, provided the rate paid to the employee in training status is paid, regardless of sex, under the training program, the

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differential can be shown to be attributable to a factor other than sex and no violation of the equal pay standard will result. Training programs which appear to be available only to employees of one sex will, however, be carefully examined to determine whether such programs are, in fact, bona fide. In an establishment where a differential is paid to employees of one sex because, traditionally, only they have been considered eligible for promotion to executive positions, such a practice, in the absence of a bona fide training program, would be a discrimination based on sex and result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. Section 800.149.—Examples“head of house

hold”. Sometimes differentials in pay to employees performing equal work are said to be based on the fact that one employee is head of a household and the other, of the opposite sex, is not. In general, such allegations have not been substantiated. Experience indicates that where such factor is claimed the wage differentials tend to be paid to employees of one sex only, regardless of the fact that employees of the opposite sex may bear equal or greater financial responsibility as head of a household or for the support of parents or other family dependents. Accordingly, since the normal pay practice in the United States is to set a wage rate in accordance with the requirements of the job itself and since a “head of household” or “head of family" status bears no relationship to the requirements of the job or to the individual's performance on the job, the general position of the Secretary of Labor and the Administrator is that they are not prepared to conclude that any differential allegedly based on such status is based on a "factor other than sex" within the intent of the statute.

the job and with the customary practice in the industry and the establishment, and the pay practice is applied uniformly to both men and women. Generally, employment for a period longer than one month will raise questions as to whether the employment is in fact temporary. Likewise, the payment of a different wage to employees who work only a few hours a day than to employees of the opposite sex who work a full day will not necessarily involve noncompliance with the equal pay provisions, even though both groups of workers are performing equal work in the same establishment. No violation of the equal pay standards would result if, for example, the difference in working time is the basis for the pay differential, and the pay practice is applied uniformly to both men and women. However, if employees of one sex work 30 to 35 hours a week and employees of the other sex work 40 to 45 hours, a question would be raised as to whether the differential is not in fact based on sex since different rates for part-time work are usually for workweeks of 20 hours or less.

Section 800.151.-Examples-employment cost

factors. A wage differential based on claimed differences between the average cost of employing the employer's women workers as a group and the average cost of employing the men workers as a group does not qualify as a differential based on any factor other than sex," and would result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential—an assumption plainly contrary to the terms and purpose of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an individual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort, and responsibility. [31 F.R. 2657, Feb. 11, 1966]

Section 800.150.—Examples temporary and

part-time employees. The payment of different wage rates to permanent employees than to temporary employees such as may be hired during the Christmas season would not necessarily be a violation of the equal pay provisions even though equal work is performed by both groups of workers. For example, no violation would result where payment of such a differential conforms with the nature and duration of

Sections 800.152–800.159.-[Reserved]

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