Is it legal for an employer to pay me less than my co-worker of a different sex?
No, the law requires equal pay for equal work. Under federal and state equal pay laws, your employer may not pay you less than a co-worker of another sex when you are doing substantially similar work. Cal. Lab. Code § 1197.5(a); 29 U.S.C. § 206(d). You are entitled to equal pay for equal work regardless of your employer’s motivations. In other words, it is illegal to offer unequal pay for equal work, even if your employer did not intend to pay you less because of your sex.
In addition, state and federal anti-discrimination laws prohibit employers from discriminating because of sex, including paying you less because of your sex. Cal. Gov. Code, § 12940, subd. (a); 42 U.S.C. § 2000e-2(a). Under these laws, however, you must show that the employer offered you unequal pay because of your sex. In other words, your sex had to be your employer’s motivation for paying you less.
Is it legal for an employer to pay me less because of my race or ethnicity?
No, the law requires equal pay for equal work. Under California equal pay law, your employer may not pay you less than a co-worker of another race or ethnicity when you are doing substantially similar work. Cal. Lab. Code § 1197.5(b). Under this law, you are entitled to equal pay for equal work regardless of your employer’s motivations. It is illegal to offer unequal pay for equal work, even if your employer did not intend to pay you less because of your race or ethnicity.
State and federal law also prohibit employers from discriminating because of race or ethnicity, including paying you less because of your race or ethnicity. Under these laws, however, you must show that the employer offered you unequal pay because of your race or ethnicity. In other words, your race or ethnicity had to be your employer’s motivation for paying you less.
How do I know if I do “substantially similar work” as my coworkers?
You do not have to have the exact same job or same job title. “Substantially similar work” is work of equal skill, effort, and responsibility and performed under similar working conditions. Cal. Lab. Code § 1197.5(a)-(b). If a significant portion of your job is identical to that of your coworker(s), you may be protected by the California Equal Pay Act. That means that it may not be important that there are some small differences in your job duties or your level of experience.
Is it legal for an employer to pay me less because of my sexual orientation or gender identity?
No. Under state anti-discrimination law, your employer may not discriminate against you because of your actual or perceived sexual orientation, gender identity, or gender expression. Cal. Gov. Code, § 12940, subd. (a). This includes if you are transgender or gender nonconforming (including identifying as nonbinary). Under federal anti-discrimination law, your employer may not discriminate against you “because of . . . sex.” 42 U.S.C. § 2000e-2(a). The U.S. Supreme Court decided that this language protects against discrimination because of sexual orientation or gender identity. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). The Court said that when an employer treats a man who dates a man differently from a woman who dates a man, the employer discriminates because of sex. It also said that when an employer treats an employee differently depending on whether they present as a man or a woman, the employer discriminates because of sex. Note that federal law prohibits discrimination at workplaces with 15 or more employees, but California law prohibits discrimination if the employer has 5 or more employees.
Because the California Equal Pay Act and the federal Equal Pay Act require comparison to a different sex, rather than asking whether the discrimination was “because of . . . sex,” it is less clear whether these laws protect employees from pay inequality on the basis of sexual orientation or gender identity. You may be protected from being paid less than someone doing substantially similar work who has a different sexual orientation or gender identity under equal pay law, but courts have not clearly ruled one way or another. If you believe you are being paid less than co-workers of another sexual orientation or gender identity, please contact our Gender Equity and LGBTQ Rights Program at 415-864-8848.
What does the law mean by “sex”?
Judges and lawmakers have often confused the ideas of “sex” and “gender” and use them as synonyms. However, you are protected not just on the basis of your “biological sex,” but also on the basis of your gender expression and identity. Your employer may not pay you less because you do not conform to socially-constructed gender expectations.
What do I have to prove to prevail on a claim under equal pay law?
An employee must prove that they are being paid less than an employee or employees of a different sex, of a different race, or of a different ethnicity who is performing substantially similar work. Once an employee makes this showing, the employer must then prove that it has a legitimate reason for the pay difference.
Can my employer have an excuse for paying me less than co-workers of a different sex, race, or ethnicity?
Your employer may be allowed to pay you less than a co-worker of a different sex, race, or ethnicity if the difference in pay is based on merit, seniority, quantity or quality of production, or education, training, and experience. However, your employer may not pay you less if your difference in training or experience is unrelated to your job or related to your sex, race, or ethnicity. Additionally, your employer must have a legitimate reason for paying you less on the basis of merit, seniority, production, or experience.
Importantly, your employer cannot pay you less because you earned less in your previous job.
How can I find out if I am being paid less than my coworkers?
You have a legal right to share how much you make, talk to your coworkers about unequal pay, and ask how much your coworkers make. However, employers are not legally required to tell you about how much your coworkers make.
Your employer cannot fire, discriminate, or otherwise retaliate against you for asking about pay inequalities or talking about how much money you or others are paid. If an employer retaliates against you, you can file a retaliation claim with the California Labor Commissioner or bring a lawsuit to recover lost wages or be reinstated to your job.
If you belong to a union, your union contract may have pay scale information for your organization. If you are a public employee, you have access to publically available pay scales.
You can also look at gender pay gap calculators to estimate if there is a gender pay gap where you work. Some gender pay gap calculators include:
- Pathways to Equity: Women and Good Jobs
- Closing the Gap: 50 Years Seeking Equal Pay
- Economic Policy Institute: What Could You Be Making
You can also research information about appropriate pay ranges for a given role here:
Is it legal for an employer to ask about my salary history when I am applying for a job?
No, an employer cannot ask job applicants about how much you made at previous jobs. Cal. Lab. Code § 432.3(b). California law also prohibits an employer from using your salary history information to decide whether to offer you a job or what salary to offer you. However, the employer may ask you about your salary expectations for the position.
Can I ask about pay when I am applying to a position?
After an initial interview for a position, you can ask the employer to provide the pay scale for the position to which you are applying. An employer must provide the pay scale information, which is defined as a salary or hourly wage range for a position. Cal. Lab. Code § 432.3.
Do equal pay and anti-discrimination laws apply to all employers?
The California Labor Code sections, including the California Equal Pay Act, apply to all employers, regardless of their size, but do not protect federal government employees. The federal Equal Pay Act applies to all employers, including public agencies.
Title VII applies to employers with fifteen or more employees. The Fair Employment and Housing Act (FEHA) applies to employers with five or more employees, with some exceptions.
What is the difference between the California laws and federal laws protecting me from unequal pay?
The California Equal Pay Act (EPA) generally has stronger worker protections than the federal Equal Pay Act. The California EPA guarantees equal pay for equal work on the basis of sex, race, and ethnicity. By contrast, the federal EPA only prohibits sex-based pay inequities. The California Equal Pay Act also has a broader standard for how similar your job must be to your coworker’s before your employer has to start paying you the same.
Anti-discrimination protections under California’s Fair Employment and Housing Act (FEHA) are also broader than the federal Title VII of the Civil Rights Act. California’s FEHA prohibits discrimination on the basis of race, religious creed, color, national origin, age, disability, pregnancy, medical condition, marital status, sexual orientation, gender identity, gender expression, transitioning status, and other protected characteristics. By contrast, Title VII prohibits discrimination only on the basis of race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), and national origin. California’s FEHA also applies to employers with five or more employees, but Title VII applies to employers with fifteen or more employees.
What is the difference between Equal Pay laws and anti-discrimination laws?
First, there are more protected categories under anti-discrimination law. The California EPA prohibits only sex-based, race-based, and ethnicity-based pay inequities. The federal EPA only applies to sex-based pay inequities.
Second, the Equal Pay Acts requires a point of comparison to another employee of another sex, race, or ethnicity who is doing similar work and getting paid more. Title VII and California’s FEHA prohibit an employer from paying you less because of a protected characteristic even if there is no other employee with comparable job requirements getting paid more.
Third, the requirements for bringing an equal pay claim are different from the requirements for bringing a discrimination claim. An employer may also claim different types of defenses depending on which type of claim is brought. The exact requirements depend on the case. In many cases, it makes sense to bring both an equal pay claim and a discrimination claim.
What are my rights to equal pay if I am undocumented?
Both documented and undocumented immigrants are protected against unequal pay and discrimination under the law. Everyone has the right to file equal pay and discrimination claims. If you are undocumented, it is a good idea to consult with an immigration lawyer before filing a complaint to discuss any immigration consequences to reporting a violation. Some online resources for finding an immigration lawyer are:
Immigration Advocates (available in 12 languages, including Spanish, and searchable by zip code) – immigrationadvocates.org/nonprofit/legaldirectory/ Executive Office for Immigration Review – justice.gov/eoir/list-pro-bono-legal- service-providers
American Immigration Lawyers Association (available in Spanish and searchable by zip code) – ailalawyer.com/
Undocumented immigrants may qualify for immigration relief as crime victims under the U visa program if the discrimination was also a crime (for example, if an employee makes an equal pay claim and the employer retaliates by obstructing justice, tampering with witnesses, etc.). You should consult an immigration lawyer to discuss this possibility.
What to do if you are being paid less than other coworkers of different gender, race, or ethnicity:
- Try to find your employer’s equal pay policy or anti-discrimination policy. Employers may provide this to employees when they start the job or have it posted on a wall in the break room or a similar central location. This information may also be in your employee handbook. This policy should state the complaint procedure employees are to follow, including the name of the person to whom you should complain.
- You usually should try to resolve the situation informally by first speaking with a supervisor, manager or someone in your employer’s human resources or personnel office. If you are aware of your employer’s complaint procedure, you should try to follow it, unless you have a good reason not to do so.
- If you belong to a union, talk with your union representative.
Document the unequal pay or discrimination
- Keep copies of all important letters and documents that you send to your employer or that your employer sends to you. Keep copies of your salary records, pay stubs, and other wage-related information. You also should keep any letters, emails, text messages, voicemails, photographs, videos, or other communications related to the unequal pay or discrimination. You should keep these materials in a safe place not at your worksite. For example, forward emails to your personal email account or to a friend, take screenshots of text messages, and keep copies of other materials at home.
- If in doubt, do not sign anything without legal advice, especially documents that require you to agree to waive your right to bring a complaint, or require you to arbitrate disputes with an employer.
If you are not able to resolve your situation informally:
- You may file a California Equal Pay Act Complaint with the Division of Labor Standards Enforcement’s (DLSE) Retaliation Unit, using Form EPA-1 or the online portal. The DLSE will investigate and may sue your employer in state court on your behalf. There is no fee to file a complaint, and you can do so without an attorney.
- You may also file a discrimination claim under Title VII or FEHA. To do so, you may file an employment discrimination complaint with the Civil Rights Department (CRD) or the Equal Employment Opportunity Commission (EEOC), which may investigate your complaint and try to resolve the problem. There is no fee to file a CRD or EEOC complaint, and you can do so without an attorney. You have three years from the most recent discriminatory act to file a discrimination claim with CRD.
- In addition, you may a file a wage claim (using Form DLSE-1) with the DLSE’s Wage Claim Adjudication Unit to recover a separate penalty under California Labor Code section 210 for your employer’s failure to pay wages as required by the California Equal Pay Act.
- If you live in an area with a local anti-discrimination law, you can file a complaint with the local agency, such as the Human Rights Commission in San Francisco, which may investigate and mediate your complaint.
- Consider speaking with an attorney about which complaint process makes the most sense for your situation. You may contact The Workers’ Rights Clinic at Legal Aid at Work by calling 415-864-8208.
- You must file your complaint with the CRD within two years (or three years if your employer’s pay inequity was willful), the CRD within three years, or the EEOC within 300 days, of the last act of discrimination. If you do not file a complaint within these time limits, you may lose your right to recover wages owed to you. Each new discriminatory payment resets the time limit for bringing a complaint. However, a delay may reduce the amount of money that your employer owes you in back pay.
Where to file a complaint:
- DLSE: To file a complaint with DLSE, go to: https://www.dir.ca.gov/dlse/Equal_Pay_Act_Instruction_Guide.pdf
- CRD: To file a complaint with the CRD, call the CRD at (800) 884-1684 to make an intake appointment, or file online at https://calcivilrights.ca.gov/complaintprocess/?content=fileComplaint#fileComplaintBody.
- EEOC: To file a complaint with the EEOC, call the EEOC at (800) 669-4000 to discuss your situation and make an appointment, or file online at gov/employees/howtofile. If you prefer to file in person, please visit an EEOC office near you. For office locations, visit: www.eeoc.gov/field/index.cfm.
- Local: To file a complaint under a local anti-discrimination law, contact the local human rights commission or similar organization (if one exists—check with the City or County Clerk). In San Francisco, contact the Human Rights Commission, 25 Van Ness Ave., 8th Floor, 94102; (415) 252-2500; website: https://sf-hrc.org/discrimination-complaints- investigation-mediation-division-overview.
What if I am fired, disciplined or treated worse after complaining about unequal pay?
The law prohibits retaliation against someone who complains about discrimination or asks about pay inequities. Your employer may not retaliate against you by terminating you, moving you to less favorable assignments or shifts, making undeserved negative evaluations, or harassing you. If anyone (including a co-worker or supervisor) retaliates against you for complaining about pay inequity, you can file a complaint with the DLSE within one year of the retaliation. If anyone retaliates against you for complaining about unlawful discrimination at your workplace, you can file a retaliation complaint with the CRD, EEOC, or Labor Commissioner.
To file a retaliation complaint, you do not have to prove that the pay inequity or discrimination you complained about was illegal. If you had a “good faith” belief that the pay inequity or discrimination was unlawful and you complained about it, then it is against the law for an employer to retaliate against you.
