Q. I am a female truck driver, and I have been employed by the company for 6 months. I just found out that a male truck driver is being paid more than I am. I asked my boss about this, and he says he makes more than I do because the company has a written seniority system as part of a collective bargaining agreement with the union. I think this violates the law. Can my boss really do that?
A. It depends. This can be tricky, because it could be considered sex based discrimination if the seniority system is not a bona fide seniority system.
To be a bona fide system, it must not have been adopted with discriminatory intent. According to the EEOC, it also must meet other criteria:
1) It is an established system containing predetermined criteria for measuring seniority, merit, or productivity;
2) It has been communicated to employees; and
3) It has been consistently and even-handedly applied to employees of both sexes.
And of course the system must in fact be the basis for the compensation differential.
According to the EEOC, the Equal Pay Act permits pay differentials when they are based on a bona fide seniority system, merit system, incentive system (in terms of quality or quantity of production), or any other factor other than sex. These are known as "affirmative defenses" and it is the employer's burden to prove that they apply. This defense has failed when applied inconsistently.
The right of employees to be free from discrimination in their compensation is protected under federal laws, including the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.
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