Unequal Pay Under the Illinois Equal Pay Act of 2003

The IL EPA’s central premise is that an employer may not “discriminate between employees on the basis of sex by paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee of the opposite sex for the same or substantially similar work on jobs the performance of which requires substantially similar skill, effort, and responsibility, and which are performed under similar working conditions.” 820 ILCS 112/10(a). 

The IL EPA also provides that an employer may not “discriminate between employees by paying wages to an African-American employee at a rate less than the rate at which the employer pays wages to another employee who is not African-American for the same or substantially similar work...”

More simply put, an employer cannot pay an employee of one sex less than it pays an employee of another sex – or pay an employee who is African-American less than an employee of another race – for doing the same or substantially similar work.

While the IL EPA states that an employer may not discriminate in pay, the IL EPA should not be understood to be an anti-discrimination law like the Illinois Human Rights Act. The IL EPA is a wage statute that looks at what an employer pays employees of different sexes for the same work to determine if a violation exists. An employee need not allege or prove that an employer had any motive or intent to discriminate due to sex or race in pay.  

For Unequal Pay issues, the term “employer” includes any individual, partnership, corporation, association, business, trust, person, or entity for whom employees are gainfully employed in Illinois, and includes the State of Illinois, any state officer, department, or agency, any unit of local government, and any school district.  820 ILCS 112/5. 

The IL EPA does not apply to legitimate independent contractor work. 56 Ill. Adm. Code Section 320.130. In determining whether a person is an employee or independent contractor, IDOL considers the actual relationship between the person and the employer; designations and terminology they used, and the person’s status for tax purposes, are not controlling.

Because the question of who may be covered by the IL EPA Unequal Pay can depend on many facts, please view IDOL’s Frequently Asked Questions to get more information. Additionally, IDOL partnered with Women Employed to raise awareness of pay equity and equal pay rights among low-wage women workers, and you can click here for additional resources.

The IL EPA bars employers from asking for or using an applicant or employee’s prior pay or wage history, whether they do so directly or through an employment agency. 820 ILCS 112/10(b-5).

This includes asking job applicants about their prior wages or salary history, whether directly or through an “employment agency, or employee or agent thereof”, or screening job applicants based on their current or prior wages/salary (including benefits or other compensation).  Neither an employer nor their agent may request or require a wage or salary history from an applicant or their prior employer as a condition of being considered (or continuing to be considered) or interviewed for employment, for receiving an offer of employment or an offer of compensation, or as a condition of employment.

Even if a job applicant voluntarily discloses their prior pay to the employer or their agent, an employer may not consider or rely on that pay history as a factor in determining whether to offer the applicant employment, or compensation, or in determining future wages, salary, benefits, or other compensation. 820 ILCS 112/10(b-20).

There are exceptions to the pay-history ban, such as when an applicant already works for the employer in another role, when an applicant’s prior pay is a matter of public record, or when an applicant discloses that they would forfeit unvested equity or deferred compensation upon resignation from their current employer. 820 ILCS 112/10(b-10).

Whether the pay-history ban applies in a given situation can be very fact-specific, so IDOL has created a dedicated Frequently Asked Questions section about this topic.  

One way in which unequal pay due to sex or race can exist or continue to occur is if employees are not allowed to discuss their wages, salary or benefits. Such prohibitions are unlawful under the IL EPA.

Under the IL EPA, no employer can discharge or in any other way discriminate against any individual for asking about, disclosing, comparing, or otherwise discussing their own or another employee's wages.  820 ILCS 112/10(b).

The same is true when an employee aids or encourages any person to exercise his or her IL EPA rights, whether those rights relate to asking about pay or asserting that pay or some other condition is unlawful under the IL EPA.

Although it was not unusual in the past for an employer to require an employee to sign a contract or waiver that would prohibit them from disclosing or discussing information about their own wages, salary, benefits, or other compensation, the IL EPA flatly prohibits this. For those employees whose job responsibilities require or allow access to other employees' wage or salary information, an employer can require confidentiality about pay without prior written consent from the employee whose information is sought or requested. 

Any employer subject to any part of the IL EPA is required to "make and preserve” records that document the name, address, and occupation of each employee, the wages paid to each employee, the pay scale and benefits for each position, the job posting for each position, and any other information the Director has by rule directed. 820 ILCS 112/20. Employers must keep those records for at least five years.

IDOL has in fact set forth additional recordkeeping requirements for every employer by regulation. Under 56 Ill. Adm. Code Section 320.140, every employer must also make, and keep for five years, records showing: the wages paid to each employee and any other forms of compensation provided by the employer; dates of hire, dates of promotion, dates of pay increases, and dates any other compensation was provided by the employer, if applicable, for each employee; and payroll records.

The IL EPA regulation sets forth further records that an employer must preserve if it makes those records in the regular course of their business operation. Records to be maintained if made include: personnel records; employee qualifications for hire, promotion, transfer, discharge or other disciplinary action; wage rates; skills testing certifications; job evaluations; job descriptions; merit system;, seniority systems; written job offers; individual employment contracts; collective bargaining agreements; and description of practices or other matters that describe or explain the basis for payment of any wage differential between employees of the opposite sex or the basis for payment of wages to any employee who is African-American at a rate less than the rate paid to employees who are not African-American by the same employer and that may be pertinent to a determination whether the differential or lower wage payment is based on a factor other than sex or race. 56 Ill. Adm. Code Section 320.140.

The IL EPA distinguishes between an employer’s attempt to interfere with someone’s exercise of the rights the IL EPA gives them and retaliation that occurs after someone exercises those IL EPA rights.

Under the IL EPA, it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under the IL EPA. 820 ILCS 112/10(b).

After an individual does exercise IL EPA rights, it is unlawful for any person to discriminate or retaliate against them (including refusal to interview, hire, promote, or employ, discharge, or otherwise) because the individual:

• Filed any charge (or instituted or caused to be instituted any IL EPA proceeding;
• Gave – or is about to give – any information in connection with any inquiry or proceeding relating to any IL EPA right;
• Testified – or is about to testify – in an inquiry or proceeding relating to any IL EPA right; or
• Fails to comply with any wage or salary history inquiry.

820 ILCS 112/35(b).

Even if someone reports what they in good faith believe is unequal pay due to sex or race, the employer may not discriminate or retaliate against the person for raising their concerns, even if the employee is not actually correct that the pay is unequal due to sex or race.

A person may file a complaint about unequal pay if, within the past year, the person:

• Was paid less than a coworker doing the same or substantially similar work in the same county, and the reason for the pay disparity was the person's sex, or race if the lesser-paid person is  African-American.
• Applied for a job and was asked their prior pay or salary on a job application or in an interview (or whose former employer was asked for the person’s prior pay or salary,) or who was declined an interview or position because they or their prior employer objected to being asked for their prior pay or salary.
• After voluntarily disclosing their prior pay or benefits during the application process, had the employer consider or rely on that disclosure as a factor in determining whether to offer employment or compensation, or in determining future wages, salary, benefits, or other compensation.
• Was told or required by their employer not to talk about their or another employee’s pay, or asked or required them to sign an agreement not to discuss pay.
• Reported to their employer or IDOL the employer’s failure to comply with IL EPA recordkeeping requirements.
• Did (or tried to) exercise any of their rights protected under the IL EPA and was subjected to interference, discrimination or retaliation.

The complaint form for unequal pay issues, which also can include recordkeeping issues related to pay, can be found here.

NOTE: If you wish to file a complaint about Unequal Pay (including discussions of pay, pay history inquiries, recordkeeping, interference, or retaliation) AND Pay Transparency or Promotional Opportunity, you will need to fill out and submit to IDOL two different complaint forms.  

Filing process

The Unequal Pay complaint may be filled out and submitted electronically using the web-based form, or printed and submitted by US Mail, facsimile, or physical delivery.

If you are filling out the complaint form electronically, please be advised that the form does not save your progress as you work through it.

A person who files an Unequal Pay complaint can view the steps of the Department’s process in the IL EPA regulation.

A note about anonymity in Unequal Pay complaints

The Department’s practice is to maintain anonymity of a complainant’s names during the administrative investigation of their Unequal Pay complaint when possible, but any person filing an Unequal Pay complaint should be aware that the Department’s ability to maintain confidentiality is limited in several scenarios:

• First, if an Unequal Pay alleges retaliation for asserting an IL EPA right, the complainant’s name must be revealed to the respondent.
• Second, if the Department intends to issue a Determination or Order requiring an employer to pay back wages to a complainant or another person, the name of the person to receive wages must be included.
• Third, the IL EPA does not provide that complaints or any other documents related to Unequal Pay are confidential as a matter of law or exempt from production in the event that the Department receives a request pursuant to the Freedom of Information Act.