Finding out that a coworker doing the same job earns more than you can be infuriating, and it may also be illegal. Federal and Indiana law prohibit paying employees less because of sex, race, age, disability, and other protected characteristics. This guide explains how those protections work and what to do if you think you are being underpaid.
The Equal Pay Act: equal pay for equal work
The federal Equal Pay Act requires employers to pay men and women equally for substantially equal work in the same establishment (29 U.S.C. § 206(d)). Jobs do not have to be identical. They are compared on:
- Skill: experience, training, education, and ability the job requires
- Effort: the physical or mental exertion needed
- Responsibility: how accountable the job is
- Working conditions: physical surroundings and hazards
Job titles do not decide the question. What matters is the work actually performed.
The employer’s defenses
An employer can justify a pay difference only if it results from:
- a seniority system
- a merit system
- a system that measures earnings by quantity or quality of production, or
- a factor other than sex, such as a legitimate difference in shift or location.
The employer has to prove the defense. Explanations like “she didn’t negotiate as hard” or “he needed the money more” often do not hold up.
Title VII and Indiana law: pay discrimination beyond sex
The Equal Pay Act covers only sex-based pay differences. Title VII of the Civil Rights Act and the Indiana Civil Rights Law go further. They prohibit pay discrimination based on race, color, religion, sex, national origin, and other protected characteristics, and the Age Discrimination in Employment Act and the ADA cover age and disability. These laws do not require the jobs to be substantially equal. They ask whether you were paid less because of a protected characteristic.
The EEOC’s page on equal pay and compensation discrimination summarizes how these laws work together. If your pay gap is part of broader unequal treatment, see our workplace discrimination page and our guide to gender discrimination laws.
Deadlines are different under each law
- Equal Pay Act: You can go straight to court without filing an EEOC charge first. The deadline is generally two years from the discriminatory paycheck, or three years if the violation was willful.
- Title VII: You must first file a charge with the EEOC, generally within 300 days in Indiana. Under the Lilly Ledbetter Fair Pay Act, each discriminatory paycheck can restart that clock (42 U.S.C. § 2000e-5(e)).
Because the deadlines differ, it is worth getting advice early. Our guide to discrimination filing deadlines in Indiana covers the details.
Can my employer stop me from discussing pay?
Generally, no. Most non-supervisory private-sector employees have a federally protected right to discuss wages and working conditions with coworkers (29 U.S.C. § 157). A policy that forbids all pay discussions can be unlawful, and punishing someone for comparing pay can also be retaliation.
What you can recover
Depending on the law, remedies can include back pay for the difference, liquidated (double) damages under the Equal Pay Act, compensatory damages, a pay adjustment going forward, and attorney fees. See what discrimination damages look like in Indiana.
What to do if you think you’re underpaid
- Gather what you know. Pay stubs, offer letters, job descriptions, and anything showing a coworker’s pay.
- Compare the actual work, not just titles: duties, responsibilities, and hours.
- Keep a record of conversations about pay, raises, and promotions.
- Be careful with confidential documents. Do not take records you are not authorized to access. Ask a lawyer first.
- Watch the deadlines above.
What pay discrimination looks like
Pay discrimination is not always obvious. Common patterns include:
- Two people in the same role, with similar experience, hired at different salaries
- Raises or bonuses awarded to one group more often than another
- Overtime shifts, commissions, or lucrative accounts steered to certain employees
- A worker promoted into a role but paid less than the person who held it before
- Women or minority employees classified into a lower pay grade for similar work
Pay is more than salary
Equal pay laws cover all forms of compensation: base pay, overtime, bonuses, stock options, profit sharing, life insurance, vacation and holiday pay, cleaning or gas allowances, hotel accommodations, reimbursement for travel, and benefits. A gap in any of these can be part of a claim.
How pay discrimination is proven
Most cases start by comparing your pay with one or more coworkers, often called comparators, whose jobs are substantially similar. Evidence can include:
- job descriptions and what each person actually does day to day
- pay records, offer letters, and raise histories
- performance reviews, showing whether the higher-paid person actually performed better
- statements by decision-makers about why pay was set
- patterns across a department or company
The employer then has to explain the difference. Under the Equal Pay Act, the employer must prove one of the four defenses. Under Title VII, you show that the employer’s explanation is not the real reason.
Can an employer rely on your prior salary?
Some employers set starting pay based on what you earned at your last job. Because past pay can reflect past discrimination, courts disagree about whether prior salary alone can justify a pay gap under the Equal Pay Act. If your employer points to your salary history, it is worth getting advice.
Retaliation for raising pay concerns
Asking why you are paid less, comparing pay with coworkers, or complaining to HR about unequal pay is protected activity. A demotion, schedule change, or firing soon after can be illegal retaliation. Keep a record of when you raised the concern and what happened afterward.
Filing with the Indiana Civil Rights Commission
Besides the EEOC, you can file a pay discrimination complaint with the Indiana Civil Rights Commission, generally within 180 days. Our guide to choosing between the ICRC and the EEOC explains the differences.
Frequently asked questions
Does the Equal Pay Act apply to small employers?
It applies to most employers covered by the Fair Labor Standards Act, which includes most businesses. Title VII applies to employers with 15 or more employees.
Do the jobs have to have the same title?
No. The question is whether the work requires substantially equal skill, effort, and responsibility under similar conditions.
Do I have to file with the EEOC first?
Not for an Equal Pay Act claim. You do for a Title VII pay claim.
Does the Equal Pay Act cover race or age?
No. The Equal Pay Act covers sex-based pay differences. Race, age, disability, and other pay discrimination claims are brought under Title VII, the ADEA, the ADA, and the Indiana Civil Rights Law.
Can my employer justify paying me less because of my prior salary?
Courts disagree on whether prior salary alone is enough. It depends on the facts and the law that applies.
Talk to an Indiana pay discrimination lawyer
If you believe you are being paid less because of who you are, contact Amber Boyd Law for a free case evaluation.
This article provides general information about Indiana and federal employment law. It is not legal advice, and reading it does not create an attorney-client relationship.
