Can My Employer Pay Men and Women Different Salaries?

The California Equal Pay Act makes it illegal for employees who perform substantially similar work based on effort, responsibility, and skill to be paid different salaries.

What Does It Mean By Substantially Similar Work?

This refers to work that is similar in the level of skill, responsibility, and effort required to perform it. The work must also be performed under similar working conditions. Things taken into account are:

  • Experience
  • Education and training
  • Ability
  • Physical or mental exertion
  • Duties
  • Accountability
  • Hazards
  • Physical surroundings

If those working conditions are similar, employers cannot pay different salaries or hourly rates based on race, ethnicity, or sex. They cannot discriminate against any protected characteristics. If employees discuss their wages, they cannot be discriminated or retaliated against. An employer also cannot ask about previous salaries, benefits, and compensation to factor into job and salary offers during the hiring process.

The laws which regulate pay discrimination are the Fair Pay Act and Equal Pay Act, and they seek to reduce the wage gap between men and women performing similar jobs. An employer must be able to prove the wage difference is based on one of the following factors, and not gender:

  • A merit system
  • A seniority system
  • A bona fide factor such as education, training, or experience
  • A commission or piece work system that measures earnings by production quantity or quality

The reason for the pay difference must be bona fide, not sex-based, and must be related to the job or a business necessity. A business necessity is defined as a legitimate reason related to factors that fulfill the business purpose.

If the employee is able to prove that there is an alternative practice that could serve the same purpose or achieve the same results without the wage disparity, a bona fide reason could be overturned.

What Do I Have To Prove For an Equal Pay Act Claim?

The employee has to prove they are being paid less than an employee of another race or ethnicity, or the opposite sex performing substantially similar work. Once that is proved, the employer must prove that there is a legitimate reason for the wage inequality.

What If The Person Earning More Than Me Has a Different Job Title?

The Equal Pay Act says the job comparison is for substantially similar jobs. So, it is important to prove that the jobs are substantially similar, regardless of the job title.

What Is The Deadline For Filing An Equal Pay Act Claim?

The employee has two years from the date of the violation to file a claim, unless the violation is willful, which would give the employee three years to file a claim. Every single paycheck with unequal pay is a violation in terms of the filing deadline.

For example, if a female worker is paid less than a male worker for substantially similar work from January 2016, the worker has until January 2018 to file a claim or January 2019 for a willful violation. If the female worker waits past that date, she can only claim for violations within the previous two or three years, depending on the violation.

What Compensation Will I Get If I Win My Equal Pay Act Claim?

An employee can claim the following under the Equal Pay Act:

  • Difference in wages
  • Interest or liquidated damages
  • Attorney’s fees and costs (if the case goes to court)

Am I Protected From Retaliation If I Claim or Report an Equal Pay Act Violation?

Yes, under the Equal Pay Act, employers are prohibited from retaliating against an employee who files or assists in an Equal Pay Act claim.

Equal Pay Laws

Several U.S laws prohibit discrimination for wages and compensation.

  • The Equal Pay Act of 1963 – prohibits wage inequality between men and women who perform substantially the same job.
  • Title VII of the Civil Rights Act of 1964 – prohibits any discrimination against employees on the basis of protected characteristics.
  • The Age Discrimination in Employment Act of 1967 – prohibits discrimination against people over the age of 40.
  • Title I of the Americans with Disabilities Act of 1990 – prohibits discrimination against a qualified individual solely on the basis of disability.

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