By Karla Miller
Special To The Washington Post
Q: Our board is looking to expand our nonprofit organization, which is having a record revenue year. I am an executive and the second-highest-paid person in our office. I have been asked to take a pay cut, unrelated to my performance, which will make me the third- or fourth-highest-paid person. Everyone else is expected to receive merit-based raises or cost-of-living adjustments at the start of the next fiscal year. Is it legal to cut one employee’s salary and nobody else’s when there is no business reason to do so? Does it matter that I am the only employee over 45 and a woman, while the executives who will outearn me after my pay cut are male?
A: Your age and gender may not have been conscious factors in your pay cut. But in the eyes of employment law, they could indeed matter — a lot.
Under the federal Age Discrimination in Employment Act, it’s illegal for employers with 20 or more workers to discriminate against any worker age 40 or older. But in practice, courts have found that it’s lawful for a company to lay off its highest earners, who often tend to be older workers, says employment attorney Tom Spiggle. That same business reason — cutting costs from the top — may be in play here, he says.
Still, the fact that you, the oldest worker, are the only high earner being asked to make this contribution to the greater good … well, that looks a bit dodgy through the ADEA lens.
Shifting perspective to your gender: Title VII broadly prohibits sex discrimination by employers with more than 15 employees. Finally, there’s the Equal Pay Act, which states simply that men and women must be paid equally for performing substantially similar jobs. Unlike the ADEA and Title VII, the EPA applies to employers of any size, and it allows workers to take their complaint straight to court, instead of filing first with the Equal Employment Opportunity Commission. Most important, under the EPA, “the employee need not prove there is intentional discrimination going on,” says Spiggle. “She would just have to show the pay differential exists.”
Mind you, no one’s advising you to go running to court just yet. It’s time to ask the decision-makers why you are the only one taking a hit, and when or whether your original salary will be reinstated. If their explanation makes sense, you could ask for non-financial perks to offset the pay cut. If not, it might be “worth an hour with a lawyer” to discuss other options, says Spiggle. Even if federal laws don’t apply to your case, your state may have laws that do.
Discrimination isn’t necessarily a mustache-twirling, hand-rubbing plot to target women, seniors or any other group. But just because your employer doesn’t mean to discriminate doesn’t mean it’s not doing something illegal.
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