California HR

California Seeks to Close the Wage Gap

By Megan Walker, Fisher Phillips

The Federal Equal Pay Act was signed into law by President John F. Kennedy in 1963. Fifty-three years later, lawmakers across the United States are still searching for ways to narrow the pay gap between men and women. California is one of the states that is leading the way—so what new laws are on the horizon?

Dissatisfied with existing equal pay laws, California and Massachusetts both recently enacted laws reframing equal pay.

Equal pay for “substantially similar” work. The new laws in California and Massachusetts redefine when equal pay is due. Rather than “equal pay for equal work,” these two new state statutes require equal pay for “substantially similar” work. The rationale behind this change is that it would prevent employers from differentiating, for example, between male janitors and female housekeepers.

Wage transparency. California and Massachusetts protect employees who discuss wages with others or ask questions about other employees’ wages. However, neither state requires an employer disclose wage information about other employees.

Shifting the burden. Employers in California now have the burden to prove that any wage gap is justified by seniority, merit, production, or another bona fide factor. Previously, the employee had to disprove these reasons.

Salary history not an excuse. In Massachusetts, employers may not use an employee’s previous wage or salary history as a defense to an equal pay action. In other words, if two candidates of different sexes are hired for substantially similar positions but one is paid more than the other purely because he was paid more in his prior position, the employer is in violation of the law. Not to be outdone, California has proposed an identical provision for its law.

Equal pay regardless of race or ethnicity. Currently, equal pay laws seek to close the wage gap based on sex or gender, leaving other protected categories to seek analogous claims only under broader antidiscrimination laws (like Title VII of the Civil Rights Act of 1964). In California, the state legislature has voted to amend its equal pay law to also address wage gaps based on race or ethnicity.

Read on for more background on the wage gap and what to expect in new legislation.