laid down certain rules to determine the working conditions. The skill of the employees should be measured by their experience, education, training and ability to do the work. Here the major issue is what types of skill are required for the job but not what skill they possessed. Since the effort is the amount of physical or mental exertion needed to perform the job, there can be variation in the pay. The pay can be unequal according to the degree of accountability required in performing the job, working conditions etc.
Apart from this, pay differentials are permitted in the case of “affirmative defenses” such as seniority, quantity, merit or quality of production, or a factor other than sex. But it is upon the empliyer to prove that the pay is different due to such affirmative defenses. (19) Moreover this, there is a prohibition on compensation discrimination based on race, color, religion, sex, national origin, age, or disability . Here it is not necessary that
plaintiff’s job should be considerably equal to that of a higher paid person outside the claimant’s protected class, nor do these statutes require the claimant to work in the same establishment as a comparator. In Partrice Fagen and others Vs State of Iowa and Dept. of Inspections and Appeals,(20) the court affirmed the principle that comparing jobs on the basis of skill,effort and responsibility should involve a practical judgement on the basis of the facts and circumamstances of the case.
It is upon the employer to prove that he paid the different wages ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. In the case of Texas Dept of Community Affairs v, Burdine (21) the court has taken same view. The court extended the in the case Corning Glass Works, Corning Glass Works v. Brennan,(22) that it is the sole duty of the palintiff to prove that he was intentionally discriminated by the defendant..
The employees and job applicants who are 40 years of age or older can relax the provisions against the employment discrimination based on age, under this Act. The Act specifies that it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, training, benefits, promotion, layoff, compensation and job assignments. Apart from this, ADEA extends the protection in the case of apprenticeship programm, Job notices and avertisements, and Pre employment enquiries.
(23) The amended version of the ADEA (The Older Workers Benefit Protection Act of 1990 (OWBPA)) entitles the employers to provide benefits to the older employers. Normally the cost of certain benefits of the older employees is higher than that of the youger employees. Hence, the employers, in certain cases, are allowed to reduce benefits based on the age so that it would be equivalent to the younger employee’s benefits. (24)
An employer can ask an employee to waive his/her rights or claims either under the ADEA to settle the matter arises of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program but such waiver should be in writing and understandable. It should be in exchange for valuable consideration. Here the employee should be advised to consult a counsel before signing the waiver. The employer should provide at least 21 days to think over and atleast 7 days to revoke, in case he signed the waiver.