On January 1, 2016, California put into place the nation’s most demanding law against gender-based wage disparities. We’ve written about this new law extensively. Keith Chrestionson also wrote this excellent piece for Corporate Counsel.
Now, with the law barely a month old, a bill has been introduced to extend the Fair Pay Act’s protections to wage disparities based on race and ethnicity. This new bill, SB 1063, is a long way from passing. But we’re seeing the start of a trend here and should expect to see more protected categories added over time.
The problem with the Fair Pay Act isn’t that it prohibits discrimination. All discrimination is equally odious, whether it’s based on gender, race, ethnicity, religion, age, disability, sexual orientation, or any of the other categories protected by the state’s anti-discrimination laws.
But while other laws require the employee to prove discrimination, the Fair Pay Act puts the burden on the employer to disprove discrimination. The plaintiff just has to point to two people in similar (not identical) jobs who earn different amounts and the employer then has prove that the difference is based on one or more legitimate factors, that the factors relied on are applied reasonably, and that those factors account for the entire wage disparity.
In almost every other type of lawsuit, the burden of proof is placed on the person claiming to be wronged. Putting the burden on the employer to disprove discrimination is fundamentally unfair. Add in double damages and attorneys’ fees and there’s a huge incentive for employees to bring these claims.
Want to know how to prepare your company? Here’s a good place to start.