Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California. Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.
If enacted by the legislature, SB 358 would amend three separate provisions of the California Labor Code. First, the Bill would expand the protections currently provided to employees for disclosing the amount of his or her wages in Labor Code section 232. The amendment would prohibit employers from disciplining employees for inquiring about or discussing other employees’ wages as well as their own. Similarly expanding on the proscriptions currently contained in section 232.5, the Bill would expand the protections for “disclosing” information about working conditions to “disclosing, discussing, or inquiring” about working conditions. Both amended versions of sections 232 and 232.5 would also require employers to post a copy of those two statutory sections in a location frequented by employees.
Most significant for employers, however, are the proposed amendments to Labor Code section 1197.5. That section sets forth California’s Equal Pay Act, and the amendments make substantial changes to the relevant standards. Specifically, the current version of the statute requires employers to pay employees of the opposite sex equally for “equal” work on jobs that require “equal” skill, effort, and responsibility. The amended version of the statute would require employers to pay employees of the opposite sex equally for “comparable” work on jobs that require “comparable” skill, effort, and responsibility. In that regard, the bill mirrors the Fair Pay Act that has been introduced in Congress in every legislative session since 1994, including most recently in 2013 (H.R. 438), but never passed. The change from “equal” to “comparable” is significant, and is purportedly designed to redress the segregation of women into historically undervalued occupations (e.g., female housekeepers versus better paid male janitors). This change in the degree of similarity required by courts would further enlarge the pool of comparators, making it dramatically easier for women to sue their employers for gender pay discrimination in California.
SB 358 does not define the term “comparable.” Perhaps equally significant, the amendments also eliminate the ability of the employer to rely on “a differential based on any bona fide factor other than sex” to justify pay disparities. Instead, the amendment places the burden on the employers to prove that different pay is due to only one or more of five specific reasons for pay disparity – seniority system, merit system, quantity or quality of production, different geographic locations, or work performed at different shifts or different times of day. Employers will no longer be able to avoid liability by pointing to other bona fide reasons for pay differences that are not based on sex.
Unless clarity is added to the language of the Bill as it makes its way through the Senate and House, employers can expect to be left guessing at what is meant by “comparable” if the Bill passes into law. It will be up to judges and juries to wrestle with the standard and to evaluate the intensely personal, individualized, and complex economic factors that determine what any given job is “worth” for any given employee or employer at any given time.