California’s laws regarding gender based pay discrimination will be amended effective January 1, 2016 by the Fair Pay Act, recently signed into law by Governor Jerry Brown. While the state has long had a law on the books prohibiting discrimination in pay based on gender, the legislature passed the law because of a continuing disparity between the pay of men and women, particularly women of color.
The Act strengthens the existing prohibition in the following ways:
- It clarifies the bases for claims;
- It stiffens the burden of proof required for employers to defend claims;
- It provides protections for employees who pursue a claim, discuss wages, or assist a fellow employee in pursuing a claim; and
- It provides a civil cause of action.
The new law sets a lower standard for employee comparisons. It allows comparison to others who are performing substantially similar work, as opposed to equal work under the former law. For example, housekeeping staff, a traditionally female occupation, might be compared to janitorial staff, a traditionally male occupation. Comparisons may also now be made between workers at different geographic locations of the same employer. The law formerly only applied to workers in the same establishment.
An employer’s ability to defend a claim is made more difficult by being required to show that the pay difference is attributable to one or more of the following existing exceptions: 1) a seniority system, 2) a merit system, 3) measures of quality or quantity of production, or 4) a bona fide factor other than sex. The bona fide factor exception is limited by the new law’s requirement that it not be derived from sex-based differential and is based on a business necessity. Once shown, however, a complainant may defeat the showing by a demonstration that the business necessity could be met without the gender-based pay difference.
To help clear the way for employees to file complaints, the new law prohibits employers from discriminating or retaliating against those who do, and makes it unlawful to prohibit employees from discussing, disclosing, or inquiring about wages. While complaints of pay discrimination are made through an administrative action with the California Department of Labor Standard Enforcement, employees who are discharged, discriminated against, or retaliated against for engaging in these activities are expressly authorized to bring a lawsuit in court. Contact us today to speak with a professional discrimination lawyer in California.
Sacramento, CA 95821