The employment lawyers at the Genie Harrison Law Firm are committed to protecting equal pay for women in the workplace.
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Equal Pay and Gender Discrimination
Our Gender Discrimination Lawyers Represent Women in the Workplace Throughout California
With ratification of the 19th Amendment, on August 25, 1920, women finally got the right to vote. But perhaps an even greater catalyst for gender equality was the introduction of women to the workforce.
Early wage-earning women began cutting a path towards independence in this nation’s long, and ongoing, fight for gender equality. Women who worked no longer had to rely solely on the financial support of their families or spouses. Women had the freedom to speak in their own voice, even if it contradicted the views of their parents or their husbands. With the means to support themselves, women’s fear of financial reprisal lessened and their influence on society grew.
As wage earners, women became social and political contenders. And as a result, legislation supporting women in the workplace was passed, including the federal Equal Pay Act of 1963 (“EPA”). 29 U.S.C. §206. And for its part, California enacted its own equal pay statute, the California Equal Pay Act of 1949 (“CA EPA”). Cal. Lab. C. §1197.5.
However, despite this legislation, the wage gap persists. In 2017, women (regardless of race or ethnicity) still made only 80 cents for every dollar earned by male co-workers and experts estimate that it will take until 2059 for women to close the wage gap. However, when accounting for race, the statistics are even worse. Black women will not see wage equality until 2119, and Hispanic women will be waiting until 2224. Institute for Women’s Policy Research, “Pay Equity & Discrimination,” https://iwpr.org/issue/employment-education-economic-change/pay-equity-discrimination/.
In an effort to close the wage gap and extend the CA EPA, California signed the California Fair Pay Act into law in 2015 and has continued to amend the law every year to offer even greater protection to working women. However, the EPA and the CA EPA remain aligned in many significant areas. Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 111.
The EPA and the CA EPA were political victories for gender equality and endeavored to further empower women by providing them with pay equal to their male counterparts. The simple principle of the EPA is that “equal work will be rewarded by equal wages.” S.Rep. No. 176, 88th Cong., 1st Sess., 1 (1963). In service of this principle, the EPA prohibits employers from discriminating against employees on the basis of sex by paying different wages for equal work requiring equal skill, effort and responsibility, and which are performed under similar working conditions. 29 U.S.C. §206(d)(1).
Do I Need to Prove Intentional Discrimination?
No. Unlike other anti-discrimination statutes (such as Title VII and the California Fair Employment and Housing Act), an aggrieved employee does not need to prove that the employer intended to discriminate against them on the basis of sex—the employee just needs to prove that they were paid less for similar work. Ledbetter v. Goodyear Tire & Rubber Co., Inc. (2007) 550 U.S. 618, 640 (overturned on other grounds by legislative action, Jan. 29, 2009).
What Constitutes Wages?
The EPA may be violated not only when an employee’s wages or salary are less than employees of a differing sex/gender for the same work; it is also violated when other benefits and remuneration differ, such as bonuses, profit sharing, vacation pay, health benefits, and the like. 29 C.F.R. §1620.10.
What Is Equal Work?
Under the EPA, equal work does not mean identical work but “substantially equal” work. 29 C.F.R. §1620.11. An employer cannot hide behind job classifications and titles to prove that one employee’s work is different from another’s. Instead, substantial equality in the work depends on actual job requirements and performance. 29 C.F.R. §1620.13(e). Determinations about whether or not equal work is being performed is a factual inquiry considered on a case-by-case basis. 29 C.F.R. §1620.13(e).
What Is Equal Effort, Skill and Responsibility?
Equal skill is determined by looking at what kind of experience, training, education, and ability are used to perform a job. 29 C.F.R. §1620.15. Jobs requiring the same skill will meet the requirement of “equal skill” under the EPA even when one job requires the skill to be performed with greater frequency. 29 C.F.R. §1620.15(a). Further “equal skill” is determined by what the job requires, not by the skill possessed by one of the employees. Hein v. Oregon College of Ed. (9th Cir. 1983) 718 F.2d. 910, 914.
Equal effort is determined by the measure of physical or mental exertion needed for the performance of a job and encompasses the total requirements of the job. 29 C.F.R. §1620.16(a). When considering the total requirements of a job, the fact that different kinds of effort are required by similar jobs does not mean that the jobs require unequal effort. 29 C.F.R. §1620(b). The federal regulations governing the EPA make it clear that while a male grocery store checker may be required to expend more physical effort at the same time a female grocery store checker may be required to perform work requiring more dexterity, this does not make their effort unequal. 29 C.F.R. §1620(b).
Equal responsibility means the degree of accountability required in performing a job. 29 C.F.R. §1620.17(a). For example, where one employee is given temporary supervisorial duties from time to time, a greater wage rate may be justified. 29 C.F.R. §1620.17(b). However, minor differences in responsibility will not justify differential wage rates. 29 C.F.R. §1620.17(b).
What Are Similar Working Conditions?
A determination of similar working conditions requires the examination of two subfactors: surroundings and hazards. Surroundings measure the elements (like toxic chemicals) regularly encountered by a worker, their intensity and their frequency. Hazards examine physical hazards regularly encountered, their frequency, and the severity of injury they can cause. 29 C.F.R. §1620.18(a). Difference in shifts, such as night versus day shifts, and minor differences in the surroundings and hazards of certain positions will not constitute different working conditions under the EPA. 29 C.F.R. §1620.18(b).
When Can an Employer Pay Different Wages for the Same Work?
Employers are justified in paying different wages for similar work when the wage differential is due to:
(1) a seniority system;
(2) a merit system;
(3) a system that measures earnings by quantity or quality of production; or
(4) some other differential based on a factor other than sex that was adopted for a neutral legitimate reason. 29 U.S.C. §206(d)(1). Stanley v. University of Southern California (9th Cir. 1999) 178 F.3d 1069, 1075.
In California, the CA EPA includes the first three defenses but narrows the scope of the fourth defense to “a bona fide factor other than sex, such as education, training, or experience.” Cal. Lab. C. §1197.5(a)(1). And in order to rely on the fourth defense under the CA EPA, employers must show that the factor is not based on or derived from a sex-based differential in compensation, is job related, and is consistent with a business necessity. Cal. Lab. C. §1197.5(a)(1)(D). Further, under the CA EPA, if an employee can show that there was an alternative business practice that would serve the same business purpose without producing a wage differential, they can defeat this defense proffered by an employer. Cal. Lab. C. §1197.5(a)(1)(D).
Can I Ask Co-Workers About Their Wages to Determine If There Is a Wage Gap?
In California, you can. An employer cannot retaliate against an employee for enforcing their rights under the CA EPA, and it cannot prohibit an employee from disclosing their own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise their rights under the CA EPA. Cal. Lab. C. §1197.5(k)(1).
Contact the Women’s Rights Attorneys at the Genie Harrison Law Firm, Fierce Advocates For Equal Pay For Women:
If you are feeling that your employer discrimination against you on the basis of your gender or sex, please contact the employment lawyers at Genie Harrison Law Firm to help you assess whether or not you may have a viable gender discrimination claim. We are passionate, relentless employment lawyers who have earned a solid reputation fighting for California employee rights. Through single-plaintiff, multi-plaintiff and class action cases, our attorneys have obtained in excess of $90 million in settlements and verdicts for our clients. But just as significantly, we have improved the working conditions for countless employees. We care about California employee rights, and we make a difference.
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