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We are staunch supporters of equal pay for equal work, as we believe everyright-minded person should be. But New Jersey's recently enactedDiane B. Allen Equal Pay Act is something entirely different.Although the title refers to “equal pay,” in fact the statute callsfor equal pay for “substantially similar” work; an entirely new standard that we fear will bestowbenefits largely on the lawyers litigating its meaning.

When the federal Equal Pay Act and New Jersey's original EqualPay Act were enacted, they were aimed at an invidious problem of adifferent time. Women working on assembly lines, as clerks, aslawyers, were paid less than men doing precisely the same jobs, forclearly discriminatory reasons such as the then-commonjustification that the men had families to support. As time went byand standards evolved, the concept of “equal” work expanded, but“equal” continued to be the touchstone. Efforts to expand payequity to the “comparable worth” of jobs were rejected by bothelected officials and the courts.

Related: Time for national anti-discrimination workplacelaw?

The new Equal Pay Act takes us a step closer to the previouslyrejected standard of comparable worth. The New Jersey Law AgainstDiscrimination is amended to make it illegal to pay a member of anyprotected class less than other employees for “substantiallysimilar work.”  Substantially similar work is defined aswork involving substantially similar skill, effort andresponsibility. Defenses are enumerated and narrow: (1) a seniorityor merit system; or (2) one or more legitimate bona fide factorssuch as training, education or quality or quantity ofproduction.

However, legitimate factors such as the quality of productionare a defense only if (1) those factors are not based upon, and donot perpetuate, differential compensation based on a protectedcharacteristic; (2) the factors are applied reasonably; (3) thefactors account for the entire wage differential; and (4) thefactors are job related for the position and based on legitimatebusiness necessity, and there is no alternative business practicethat would serve the same purpose without producing the wagedifferential. In other words, it is no longer legal in New Jerseyto pay more productive employees more money if that results inmembers of some other protected group (a different sex, race,national origin, religion, disability, marital status, sexualorientation, etc.) making less as a group, unless the employer canprove that there is no other way to set wages that would not have asimilar impact. Employers that are found in violation of thisamorphous and statistics-driven standard are subject to a six-yearstatute of limitations and treble damages, in addition to the usualcompensatory damages and counsel fees.

How well-intentioned employers are to go about complying withthis statutory mandate is as yet a mystery. Is the job of acorporate lawyer who commands $1,200-an-hour fees substantiallysimilar in skill, effort and responsibility to an environmentallawyer who is billed at half that much? Must employers continuallycalculate the comparative compensation of each protected categoryof employees to determine whether there are any differences, and ifso whether there is any other way to set wages that would eliminatethose differences? And how will judges and juries determine what isand is not “substantially similar” work?

Our Legislature was certainly well-meaning in enacting the EqualPay Act, but they should have thought more about the practicalimpediments to compliance and enforcement, and the impact onbusinesses in our state. Unequal wages based on sex or any otherprotected characteristic are an evil that we should continuouslywork to eliminate through societal, legislative and judicial means,but thrusting New Jersey businesses into a morass of statistics andlitigation is not the right answer.