The Pennsylvania legislature is considering measures that would expand the state Equal Pay Law and the Pennsylvania Human Relations Act (PHRA). The following is a summary of the latest developments.
Senate Bill 36 (now with the state legislature’s Labor and Industry Committee) would substantially expand the scope of the current Equal Pay Law by changing the word “equal work” to “comparable work.” This leads to the inevitable problem of defining “comparable work.” The amendment attempts to resolve this by defining comparative work as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions. A job title or job description alone shall not determine comparability.”
The amendment would allow employers a defense if they can demonstrate the following:
- That the wage differential is based on a bona fide seniority system, merit system, system that measures earnings by quantity or quality of production or sales, or factor other than sex. including education, training, or experience. With respect to seniority, the amendment provides that time on leave because of a pregnancy-related condition or protected parental, family, and medical leave does not reduce seniority.
- That each factor relied upon is applied reasonably.
- That one or more factors relied upon account for the entire wage differential.
The bona fide factor defense is available only if the employer can show that it was job-related, consistent with business necessity, and not based upon or derived from a sex-based differential in compensation. “Business necessity” is defined as an overriding legitimate business purpose, such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. The defense is not available if the employee shows that another practice would serve the same business purpose without creating the wage differential.
The legislation also provides that job title or job description alone does not determine whether two jobs are “comparable.” Employers would be prohibited from equalizing pay by reducing the pay of any employee.
The legislation demonstrates the difficulty of focusing pay on job title and responsibilities, rather than the merits of the individuals performing the jobs. As a result, the amendment could create a cavalcade of claims where employers might have to justify virtually all pay differentials within a single job title to the Pennsylvania Human Relations Commission.
If this bill (or a semblance of it) does become law, employers with Pennsylvania employees will need to have mechanisms in place to justify their pay differentials.
Revising Antidiscrimination Provisions
Under Senate Bill 238, marital status would be added to PHRA as protected category, and familial status would be expanded.
This bill would amend the PHRA by adding marital status as a protected category, and expanding the definition of “familial status,” which is already a protected category. The bill is currently referred to the Labor and Industry Committee. The addition of marital status to the list of protected classes would bring the PHRA into line with sister state New Jersey’s Law Against Discrimination.
“Familial status,” already contained in the statute, would be expanded significantly to include an individual “who is a provider of care, or is perceived to be a provider of care, for a family member, whether in the past, present or future.” For purposes of this definition, the term “family member” shall include the employee’s spouse, domestic partner, children, household members, parents and all other persons related to the employee and the employee’s spouse and children by marriage, blood or consanguinity.
This proposed expansion is significant, and terms like “perceived to be a provider of care” and the rather vague “consanguinity” may leave employers scratching their heads.
Employers with Pennsylvania employees will need to be ready to add marital status and the expanded “familial status” to their nondiscrimination policies, and to ensure that recruiters and interviewers are adequately trained to avoid creating liability in job interviews and the hiring process.
John E. MacDonald is an attorney with Constangy Brooks Smith & Prophete in Ewing, N.J. and Philadelphia. © 2023 Constangy Brooks Smith & Prophete. All rights reserved. Reprinted with permission via Lexology.
