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Equal Pay Act, pay discrimination, Wal-Mart


Also published in Women and the Law edited by Tracy A. Thomas. West Publishing Co., 2012, p. 159-198.


The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes provides a unique opportunity to reflect on whether and how the legal system should address unjustified pay disparities between men and women who perform similar jobs. This Article describes the Court’s decision and analyzes the insights it offers about the legal quest for equal pay. First, Wal-Mart demonstrates the tension between Title VII’s focus on the employer’s intent and the economic realities of how pay discrimination happens in the modern workplace. As the women at Wal-Mart experienced and research confirms, pay disparities tend to be the greatest when employers delegate excessive, unchecked discretion to supervisors. Second, Wal-Mart exemplifies how litigation remedies tend to be ineffective for pay discrimination because of the intent requirement of Title VII, the prima facie standard of substantial equality under the Equal Pay Act, the broad “factor other than sex” defense, and procedural difficulties for group actions.

This Article proposes a blueprint for a more effective remedy for pay discrimination that would: (1) provide incentives for self-regulation by employers, such as pay transparency and periodic compensation audits; (2) limit defenses to those that are job-related and consistent with business necessity; (3) incorporate a pragmatic interpretation of equal work; and (4) facilitate group actions for systemic pay discrimination.

Publication Citation

46 New England Law Review 229 (2012).


Labor and Employment Law