Can A California Employer Pay Me Less Because I Am A Woman?
The gender pay gap has been a real, well-documented problem for decades. According to U.S. Census figures, an American female will earn, on average, about 82.3 cents for every $1.00 made by a male in a similar job. To remedy this problem, California has implemented legislation designed to reduce, and ideally eliminate, gender-based pay discrimination in the workplace.
The California Equal Pay Act, codified in Section 1197.5 of the state’s Labor Code, makes it clear that an employer may not “pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work.” In other words, if a male and female perform the same job for an employer, all other factors being equal, the employer cannot pay the female less.
Now, there are situations where all other factors are not equal. The Equal Pay Act recognizes this by permitting differences in wages based on any of the following factors:
- a seniority system;
- a merit system;
- a production quota, i.e., earnings based on quantity or quality of production; or
- another “bona fide” factor aside from sex, including education, training, or experience.
This fourth factor is often susceptible to abuse by employers. It is easy enough to fabricate an educational or experience requirement to justify paying females less. To help prevent such abuse, Section 1197.5 states the burden is on the employer–not the employee–to prove that its reason for a wage differential is not based on sex, related to the job in question, and is consistent with some “legitimate business purpose.”
Salary History and Pay Discrimination
One thing that is not a legitimate business reason for pay discrimination is salary history. Let’s say Mary applies for a job with a California company. The company wants to know what Mary made at her last position. Based on that figure – which was itself the product of sex-based pay discrimination – the California employer makes an offer that would continue to pay Mary less than similarly qualified male workers.
In this hypothetical scenario, the employer did a number of things wrong. First, Section 1197.5 states that an employee’s prior salary “shall not justify any disparity in compensation.” Second, there is another California law, Labor Code Section 432.3, that prohibits the employer from even asking about Mary’s salary history in the first place.
Section 432.3 states an employer cannot “rely on” or make any inquiries regarding a job applicant’s salary history. The applicant may volunteer their salary history, and if they do so, the employer may consider that history in determining the applicant’s potential salary. Of course, Section 1197.5’s prohibitions against pay discrimination still apply.
In addition, Section 432.3 gives the applicant the right to ask for the pay scale for a position advertised by the employer. The employer is required to grant any “reasonable request” for such information, but only after conducting an initial interview with the applicant. So merely applying for a position does not grant you, as the applicant, an unqualified right to inquire about the pay scale. And while the employer may not ask about salary history during the interview process, it can inquire about an applicant’s “salary expectation” for the position.
Speak with a Coachella Valley Employment Attorney Representing Employees Today
If you believe that you have been the victim of sex-based pay discrimination by a current or prospective employer, it is critical that you seek out timely legal advice regarding your rights. Contact Riverside County & Coachella Valley employment lawyer for employees Karen J. Sloat today if you need to speak with someone right away.