Equal Pay Act, Pregnancy Discrimination & GINA

Three federal laws create overlapping protections against workplace discrimination based on sex, pregnancy, and genetic information. The Equal Pay Act of 1963 requires equal pay for equal work regardless of sex — covering essentially all employers under the FLSA — but its "equal work" standard and four affirmative defenses (seniority, merit, production, and any other factor) have made pay discrimination cases difficult to win. The Pregnancy Discrimination Act of 1978 amended Title VII to prohibit treating pregnancy, childbirth, or related medical conditions differently from any other temporary disability. The Pregnant Workers Fairness Act (PWFA, 2023) went further — requiring employers with 15+ employees to provide reasonable accommodations for pregnancy and related conditions (like desk work during high-risk pregnancy, schedule changes, bathroom breaks), without requiring the worker to prove they're disabled. The Genetic Information Nondiscrimination Act (GINA, 2008) prohibits employers from using genetic information in employment decisions and health insurers from using it in coverage/pricing. Despite these laws, women still earn approximately 84 cents per dollar compared to men, with the gap wider for women of color — a persistent divide that reflects both discrimination and occupational segregation that the statutes don't fully address.

Current Law (2026)

Legal Authority

• 29 U.S.C. § 206(d) — Equal Pay Act (no employer shall discriminate between employees on the basis of sex by paying different wages for equal work requiring equal skill, effort, and responsibility performed under similar working conditions; exceptions: seniority, merit, quantity/quality of production, or any factor other than sex)
• 42 U.S.C. § 2000e(k) — Pregnancy Discrimination Act (amends Title VII — "because of sex" includes because of pregnancy, childbirth, or related medical conditions; pregnant employees must be treated the same as other employees similar in their ability or inability to work)
• 42 U.S.C. § 2000gg — Pregnant Workers Fairness Act (employers must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless accommodation would impose undue hardship; interactive process required; no retaliation)
• 42 U.S.C. §§ 2000ff-2000ff-11 — GINA (Title I: health insurers may not use genetic information in coverage decisions; Title II: employers may not discriminate based on genetic information in hiring, firing, pay, or other terms of employment; employers may not request, require, or purchase genetic information except in narrow circumstances)

How It Works

These three statutes address distinct but related forms of employment discrimination based on sex-linked characteristics — pay disparities, pregnancy status, and genetic information. They complement broader anti-discrimination protections under the Civil Rights Act and the ADEA. Together, they protect workers from some of the most historically entrenched forms of workplace bias.

The Equal Pay Act (29 U.S.C. § 206(d)) requires that men and women performing "equal work" — jobs requiring substantially equal skill, effort, and responsibility under similar working conditions — must receive equal pay. Jobs need not be identical, just substantially equal in content. If a wage disparity exists between male and female employees doing equal work, the employer bears the burden of proving it falls within one of four affirmative defenses: a seniority system, a merit system, a system measuring production quantity or quality, or "any factor other than sex" such as education, experience, or market conditions. Private lawsuits are available with a 2-year statute of limitations (3 years for willful violations), and successful plaintiffs receive back pay plus liquidated (double) damages. The Pregnancy Discrimination Act (42 U.S.C. § 2000e(k)) amended Title VII to make clear that sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions: employers must treat pregnant employees the same as other employees who are similarly limited in their ability to work. If light duty, alternative assignments, or leave are available to employees with workplace injuries or temporary disabilities, they must be equally available to pregnant employees.

The Pregnant Workers Fairness Act (PWFA, 2023) significantly expanded pregnancy protections by moving beyond equal treatment to require reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions — mirroring the ADA's accommodation framework. Examples include more frequent breaks, modified schedules, temporary reassignment to lighter work, time off for prenatal appointments, and dress code modifications. Employers must engage in an interactive process and may deny accommodation only for undue hardship; critically, employers cannot require employees to take leave if another accommodation would allow them to continue working. GINA (42 U.S.C. §§ 2000ff et seq.) adds a separate layer: Title I prevents health insurers from using genetic information — test results, family medical history — to make coverage or premium decisions; Title II prohibits employers from using genetic information in any employment decision or requesting genetic testing. An employer cannot terminate an employee because a genetic test revealed a family member carries a BRCA mutation, even if the employee is currently healthy.

How It Affects You

State Variations

• State laws on pay transparency and reporting (requiring employers to disclose salary ranges in job postings) are proliferating

Implementing Regulations (CFR)

• 29 CFR Part 1604 — Guidelines on discrimination because of sex:
  • 29 CFR 1604.8 — Relationship of Title VII to the Equal Pay Act (where Title VII and the Equal Pay Act both apply, violations of the Equal Pay Act are also violations of Title VII; the four affirmative defenses of the Equal Pay Act apply to equal pay claims under Title VII)
• 29 CFR Part 1620 — The Equal Pay Act: the EEOC's interpretive regulations implementing 29 U.S.C. § 206(d), covering who is covered, what constitutes equal work, what defenses employers may raise, and how violations are remedied. Key provisions:
  • § 1620.1 — Basic applicability: the EPA is part of the Fair Labor Standards Act and applies to the same employers (those engaged in commerce or production for commerce); the prohibition covers sex-based wage differentials for jobs requiring equal skill, effort, and responsibility performed under similar working conditions
  • § 1620.10 — Wages defined broadly: "wages" under the EPA includes all payments made to or on behalf of an employee as remuneration for employment — not just base pay but also bonuses, profit-sharing, vacation pay, overtime, stock options, medical and hospital benefits, pension contributions, and other fringe benefits; employers cannot pay equal base wages while providing unequal benefits by sex
  • § 1620.13 — "Equal work" standard: the four elements — skill (experience, training, education, and ability required to perform the job), effort (mental or physical exertion required), responsibility (the degree of accountability required), and working conditions (physical surroundings and hazards) — must all be equal; jobs do not need to be identical, only substantially equal; minor differences in tasks do not defeat equality if those tasks are not the principal content of the jobs
  • § 1620.15 — Equal skill: skill is measured by the skills required to perform the job, not the skills held by the individual employee; a woman who performs a job requiring equal skill is protected even if the employer pays her male counterpart more on the theory that he could perform additional, higher-skill tasks that he is never actually asked to do
  • § 1620.16 — Equal effort: the effort required must be substantially equal; extra tasks claimed to require additional effort must be performed as a regular and recurring part of the job, not occasionally — employers cannot justify pay differentials by pointing to occasional extra duties that rarely occur and do not constitute the primary job content
  • § 1620.17 — Equal responsibility: degree of accountability including the nature and extent of supervision, authority to make decisions, and consequences of errors; a small difference in responsibility does not defeat equality when the jobs are otherwise substantially equal
  • § 1620.20 — Extra duties defense: employers sometimes argue that one employee is paid more because they perform additional duties; the regulation provides this is not a valid defense if: (1) the extra duties are not regularly performed, (2) the extra duties are also performed by the lower-paid employee, or (3) the extra duties would not warrant the pay differential if performed by a lower-paid employee
  • § 1620.22 — Employment cost is not a defense: an employer cannot justify a wage differential by showing that the average cost of employing women is higher than the average cost of employing men (e.g., claiming women's benefit costs are higher); the EPA requires equal pay for the individual, not average equality across groups
  • § 1620.23 — Collective bargaining not a defense: a wage differential established in a collective bargaining agreement is not a valid affirmative defense under the EPA; the existence of a union contract does not insulate an employer from EPA liability for paying women less than men for equal work
  • § 1620.25 — Equalization of rates: when a court finds an EPA violation, the employer must raise the lower wage rate to match the higher rate — the employer cannot remedy the violation by reducing the higher-paid employee's wages; the Bennett Amendment to Title VII incorporates this principle into broader sex discrimination wage claims
  • § 1620.26 — Red circle rates: a "red circle rate" is a temporarily higher-than-normal wage rate paid to an individual employee for specific, documented reasons (e.g., an employee placed in a lower-rated job while recovering from injury keeps their former higher rate); red circle rates are a valid defense only if the higher rate was genuinely established for a reason other than sex and the employer can document the legitimate business justification
  • § 1620.27 — Dual jurisdiction with Title VII: claims may be brought under both the EPA and Title VII simultaneously; the EPA does not require a charge filed with the EEOC before filing suit in court (unlike Title VII, which requires exhaustion of administrative remedies); Title VII provides broader remedies including compensatory and punitive damages, while the EPA provides back pay and liquidated damages; state equal pay laws providing greater protection are not preempted

Pending Legislation

• HR 17 (Rep. DeLauro, D-CT) — Boost pay equity: ban wage-history use, expand sex protections, increase enforcement. Status: Introduced.
• HCONRES 80 — Congressional commitment to pay equity, workplace protections, caregiving supports. Status: Introduced.
• HCONRES 81 — Designate Equal Pay Day, highlight 81-cent-per-dollar gap. Status: Introduced.
• SCONRES 31 — Urge workplace gender equity through equal pay and enforcement. Status: Introduced.

Recent Developments

• The PWFA (effective June 2023) has generated significant new accommodation claims and EEOC guidance
• Pay transparency laws have expanded rapidly at the state and local level, with growing momentum for a federal requirement
• The gender pay gap has narrowed slowly but persistently — from 77 cents in 2010 to ~84 cents in 2024
• EEOC has issued final regulations implementing the PWFA, including examples of reasonable accommodations
• Genetic testing is becoming more common (consumer genomics, employer wellness programs), increasing GINA's practical importance
• Trump anti-DEI executive orders created new equal pay dynamics: EO 14173 (January 2025) ended DEI programs at federal agencies and pressured contractors to eliminate race- and sex-conscious pay equity initiatives; paradoxically, some advocates argued this increased reliance on the Equal Pay Act's objective pay-gap requirements since voluntary DEI-based adjustments are now off the table.
• EEOC under Trump de-prioritized pay discrimination enforcement in 2025: the new EEOC leadership rescinded Biden-era guidance on pay transparency and intersectional discrimination; EEOC charge processing times lengthened as the agency reduced enforcement staff, forcing more individual plaintiffs to pursue EPA and Title VII claims directly in federal court.
• PWFA implementation proceeding: EEOC's 2024 final Pregnant Workers Fairness Act regulations took effect despite legal challenges from 17 states; courts have upheld most provisions including accommodation requirements for abortion-related conditions, though litigation in the Fifth and Eighth Circuits continues through 2025.