Mississippi College Law Review

Publication Date

Fall 2022


The broad scope of this fourth affirmative defense available to employers under the EPA and Title VII allows for inconsistency in its interpretation and is responsible, at least in part, for the continued existence of wage discrimination. Without a prescribed means of application— specifically, a stricter means of application—employers are more readily absolved from liability under the FOTS defense. The best solution to this problem is for Congress to adopt a more stringent approach to the FOTS defense under the Equal Pay Act of 1963—an approach which would apply to Title VII, as well. However, with little headway being made in the legislation regarding pay equity, this Comment proposes instead that courts adopt the job-relatedness standard that multiple circuits already apply for the FOTS defense. Part II of this Comment explores the background of discrimination laws in the United States and focuses on legislation, both adopted and proposed, surrounding wage discrimination. Part III specifically analyzes the requirements under the EPA’s burden-shifting analysis, taking into consideration the Act’s legislative history and the lack of consistency among circuit courts in interpreting the FOTS defense. Part IV concludes by suggesting reformation for, and solutions to, ongoing wage discrimination in America and urges that the FOTS defense be amended to redefine FOTS.



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