Because of recent high-profile cases claiming gender-based pay discrimination, the Equal Pay Act has taken on a new life. Newspapers continue to tout the controversial statistic that women earn only 77 cents for each dollar men earn. That statistic does not distinguish among jobs and is actually a comparison of apples to oranges, argue critics. Nevertheless, there are certainly situations where women on average are paid less than similarly-situated men. The fact that retail giant Wal-Mart is the defendant in the first major case of this kind in many years has placed all retailers in the crosshairs of the wage and hour plaintiffs' bar.

What Makes These Claims Different?

Unlike run-of-the-mill discrimination claims, Equal Pay Act claims rely heavily on the use of statistical analysis of disparities in pay as evidence of discrimination. Statistical analyses can reveal abnormalities among pay in various groups. But statistics are not arithmetic where there is only one correct answer to the problem. The inclusion or exclusion of factors other than the challenged one can reveal that nondiscriminatory characteristics, such as education and experience, have more bearing on the disparity than gender.