Is Your Male Colleague Paid More for the Same Work?

The federal and California Equal Pay Acts require that men and women in the same workplace be given equal pay for equal work. Despite this requirement, women working full-time, year-round only make 83 cents for every dollar men make. When all workers are considered, including those working part-time, the gap increases to 73 cents on the dollar.¹ The average woman beginning her career today will lose $417,400 over the course of a 40-year career if the current wage gap does not close. Women of color stand to lose far more—approximately $1 million over the course of their careers.² A recent study found that 85 percent of the wage gap would be eliminated if women were paid equally within each occupation.³

Violations of the Equal Pay Act in the workplace can be difficult to spot, but may include the following:

• Offering women lower base compensation
• Offering women lower bonuses, stock options, commissions, or other pay
• Refusing to promote women
• Promoting less-qualified men instead of more-qualified women
• Offering women fewer hours or overtime
• Offering women fewer work opportunities or assignments
• Punishing women for taking maternity leave
• Refusing to allow workers to discuss their wages or salary or relying on a worker’s prior salary or wage to determine her pay—both are unlawful in California.

The wage gap is caused by many different factors, including a belief that women are not suited for leadership roles, or for jobs in traditionally male-dominated fields like tech, law, medicine, and the trades.

In California, employers cannot pay any of their employees wages or salaries less than they pay employees of the opposite sex, or of another race or ethnicity for substantially similar work. “Substantially similar work” is work that is mostly similar in skill, effort, and responsibility, and is performed under similar working conditions. “Skill” refers to the experience, ability, education, and training needed 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 physical surroundings (for example, exposure to temperature, fumes, and ventilation), and hazards.⁴

An employer can defeat an Equal Pay Act claim by proving that the difference in pay for substantially similar work is due to seniority, merit, a system that measures production, and/or a “bona fide factor other than sex, race, or ethnicity.” This “bona fide factor” must not be based on or derived from a sex, race, or ethnicity-based factor, must be job-related, and must be consistent with a business necessity. Examples of a “bona fide factor” accounting for the difference in pay are education, training, and experience.⁵

California law forbids employers from asking a job applicant about salaries they were paid in the past, including compensation and benefits. Employers cannot use a worker’s past salary determine whether to offer employment or in determining that worker’s salary.⁶ This is to help eliminate ongoing discrimination in pay from job to job.

Workers in California also have the right to ask their coworkers how much they make, share their own salary, and discuss unequal pay in the workplace. Employers cannot retaliate against employees for doing so. The organization Legal Aid at Work has complied resources for determining whether there is a gender pay gap in a certain workplace here: https://legalaidatwork.org/factsheet/equal-pay-fact-sheet/.

If you believe your employer has paid you less than others because of your sex, gender, race, or ethnicity, get in touch with us and we can help you assess your options.

• ¹Jasmine Tucker, The Wage Gap Robs Women of Economic Security as the Harsh Impact of COVID-19 Continues, National Women’s Law Center (Mar. 2022), https://nwlc.org/wp-content/uploads/2022/03/Equal-Pay-Day-Factsheet-2022.pdf.
• ² Id.
• ³ Deborah Rho, What Causes the Wage Gap?, The Gender Policy Report, University of Minnesota (Feb. 24, 2021), https://genderpolicyreport.umn.edu/what-causes-the-wage-gap/.
• ⁴ California Department of Industrial Relations, California Equal Pay Act (Dec. 2020), https://www.dir.ca.gov/dlse/california_equal_pay_act.htm.
• ⁵ Id.
• ⁶ Id.