California Women Continue to Struggle for Equal Pay in Public, Private Employment
“Equal pay for equal work” has been a longstanding goal of federal and state laws designed to eliminate the wage gap between men and women in the workplace. Unfortunately, simply passing laws does not magically undo the effects of decades of employment discrimination. Even in California, a state that is noted for its progressive efforts in this area, there remains a serious gender pay gap problem in both the private and public sectors.
Defining the Gender Pay Gap
You have probably heard that women earn an average of only 80 percent on the dollar of what men do in the workplace. This is actually a broad extrapolation of data gathered by the U.S. Census. Here are some more concrete numbers. According to a 2017 report in the Los Angeles Times, the median income for women who live in California and work-full time is about $7,200 less than the median income for similarly situated men. As the Times noted, that’s a significant difference–enough to cover “more than five months of rent” in many California communities.
Some believe the gender pay gap is presumed to have two root causes. First, women earn less than men for performing the same or similar job. Second, women are more likely to work in jobs and industries where the pay is simply lower. Indeed, the Times cited a 2016 study by Cornell University in New York that found “51 percent of the difference in the compensation of women and men is related to the fact that female workers are more concentrated in underpaid sectors, such as nursing and education, and in lower-level roles.”
And this is not just a private-sector issue. In another Times report, the State of California’s Department of Human Resources found there was a 20.5 percent disparity in the pay of the state’s civil service workers. In fact, this disparity is so great that based on current trends, the public-sector gender pay gap will not be closed for another 26 years.
How the California Equal Pay Act Can Help
California has been proactive in its legislative efforts to remedy the gender wage gap. In 2015, Gov. Jerry Brown signed a series of amendments to the state’s Equal Pay Act. State law previously prohibited private employers from paying employees who perform jobs requiring “equal skill, effort, and responsibility” differently based on sex. But the 2015 amendments clarified and strengthened the obligations of employers.
For example, under the pre-2015 law an employer only had to compare the wages of employees working the same jobs at the same establishment. Current law eliminates the “same establishment” rule and now states an employer cannot pay female employees less for “substantially similar work,” which must be assessed based on a combined assessment of the “skill, effort, and responsibility” required by the position. Per the Labor Commissioner’s Office, “substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job. Working conditions has been interpreted to mean the physical surroundings (temperature, fumes, ventilation) and hazards.”
Under the current law, and as recognized by the Labor Commissioner, “an employee must show that he or she is being paid less than an employee or employees of the opposite sex, of another race, or of another ethnicity who is performing substantially similar work. The employer must then show that it has a legitimate reason for the pay difference.”
The CA Equal Pay Act also places the burden on the employer to prove a pay differential is not the byproduct of sex discrimination. If there is a pay differential, it is the employer’s burden to show that the differential is based on seniority, merit, or by measuring the quantity or quality of production, or a “bona fide factor” other than sex, likeeducation, training, or experience into account when setting salary levels. However, the employer must demonstrate its methodology is not “derived from a sex-based differential in compensation” and that it serves a “business necessity.” And even if it does, the employee can submit evidence that there is an “alternative business practice” that would achieve the employer’s legitimate business purpose “without producing the wage differential.” With AB 1676, the pay differential cannot be based on the employee’s prior salary – prior salary alone is insufficient to justify a pay differential.
The gender pay gap is a complex problem that has no easy, immediate solution. But if believe your employer is paying women less than men to perform essentially the same jobs, the CA Equal Pay Act may provide your best hope for remedying the situation. Contact a qualified California employment lawyer or equal pay lawyer who can review your case and advise you on how to proceed.