“Wage Discrimination” in California – What is it and how do I prove it?

Wage discrimination is the illegal practice of an employer paying unequal compensation to workers for substantially the same work because they belong to a protected class.

California’s anti-wage discrimination law – called the California Equal Pay Act (CEPA) – forbids paying workers who perform substantially similar work different compensation because of their sex, race, or ethnicity.

Here at (877) SUE-MY-BOSS, I have represented countless workers who have been paid less due to their gender or the color of their skin. I have had great success in getting my clients reinstated to their old jobs if they were wrongfully terminated, plus I can usually recover twice their back wages if not more.¹

The best proof that you have been discriminated against in violation of CEPA depends on the case. Still, common evidence I rely on includes interoffice memos, office emails, personnel files, surveillance video/audio of the employer’s actions, and eyewitness accounts of the discrimination. So be sure to document all instances of discrimination you have experienced – the more evidence you have, the stronger your case.

What are some examples of wage discrimination in the workplace?

A few examples of wage discrimination in California that I see are:

• a female employee getting paid a lower salary than her male counterparts,
• an older man having to contribute more for retirement than his younger coworkers,
• Black women and other women of color not getting offered the same employment benefits as coworkers of other races,
• white women receiving higher wages per hour for the same job that Hispanic and African-American women are working, and
• a male employee receiving less sick time from his employer than female workers.

In each of these examples, a worker is receiving less compensation because of a discriminatory reason, even though they are performing the same job.

What types of pay have to be equal?

Workplace anti-discrimination laws prohibit a wide range of wage discrimination in California. This includes compensation in the form of:

• hourly pay rates,
• salaries,
• retirement and life insurance benefits,
• terms of employer-provided healthcare,
• reimbursement policies,
• vacation pay, sick leave, and other paid time off (PTO) offerings,
• bonuses,
• overtime pay,
• stock options, and
• travel expenses and accommodations.

What can I do if my employer is committing wage discrimination?

If your employer is paying you less due to your sex, race, or ethnicity in violation of the California Equal Pay Act, we can:

• File a claim with the California Labor Commissioner; or
• File a traditional wage and hour lawsuit in court.

I handle the entire process of filing a claim and bringing a lawsuit. However, most of the time, I can end wage discrimination and win a sizeable settlement just by mailing your employer a strongly worded demand letter. Many companies are willing to make substantial financial concessions to avoid a lawsuit.

Does federal law forbid pay discrimination also?

Yes. Several federal laws forbid pay discrimination in different circumstances, including:

• Equal Pay Act of 1963 (EPA),
• Title VII of the Civil Rights Act of 1964 (Title VII),
• Americans with Disabilities Act (ADA), and
• Age Discrimination in Employment Act (ADEA).

These laws apply to California, though not all employers are subject to them. Small employers with few employees may only fall under the EPA.

Most importantly, while the EPA requires proof of unequal pay for equal work, Title VII does not. Meanwhile, Title VII claims require evidence of a disparate impact or a discriminatory animus or intent, while unequal pay claims under the EPA do not. Additionally, Title VII claims do not require comparing your wages to someone similar who is not in your protected class.²

Claims under Title VII, the ADA, and the ADEA must exhaust all administrative remedies with the U.S. Equal Employment Opportunity Commission (EEOC) before they can be filed in court. Though EPA claims do not have to go through the EEOC first: You can file these lawsuits in court right away.

The Equal Pay Act

Under the EPA, employers are not allowed to pay one sex lower wages for equal work in jobs that involve the same skills, effort, responsibilities, and working conditions. The EPA applies to any employer that has 2 or more employees.

To make a prima facie case of wage discrimination under the EPA, you have to show 4 elements:

1. you were paid unequally,
2. the discrepancy was on the basis of sex,
3. you performed substantially equal work, and
4. others in the same establishment received better pay.

Suppose you can prove a prima facie case for wage discrimination. In that case, your employer has the opportunity to rebut your claim by showing that the wage discrepancy was permissible under one of the EPA’s 4 exceptions:

1. seniority,
2. a merit system,
3. a system that measures productivity, or
4. another factor that is not based on sex.

If you are filing a lawsuit under the EPA, you have either 2 years from the last discriminatory paycheck to file the claim, or if the discrimination was willful, 3 years.³

Title VII of the Civil Rights Act

Title VII forbids workplace discrimination that is based on race, color, religion, sex, pregnancy, and national origin. This law applies to employers that have 15 or more employees.

Generally speaking, you have to make a prima facie case of wage discrimination by showing that:

• you are in a protected class under Title VII or another federal anti-discrimination law,
• you satisfactorily performed your job duties,
• you received unequal compensation for your work, and
• that disparate pay was because you were part of a protected class.

If you can make a prima facie case, it creates the presumption of discrimination. Your employer then has to show that there was a legitimate and non-discriminatory justification for the disparate pay. If your employer can provide one, you can rebut its claim by showing that it is merely a pretext for unequal pay.

Wage discrimination claims must be made within 180 days of the issuance of the last discriminatory paycheck.⁴

The Americans with Disabilities Act

The Americans with Disabilities Act prohibits workplace discrimination against qualified workers based on their physical or mental disability. This includes wage discrimination where a disabled person is not paid the same as a non-disabled person because of their disability.

The ADA only covers employers that have 15 or more employees. The ADA broadly follows Title VII’s procedures, including the 180-day statute of limitations.⁵

Age Discrimination in Employment Act

The Age Discrimination in Employment Act prohibits workplace age discrimination. Among other discriminatory practices, the ADEA forbids employers from paying workers differently because of age 40 or older.

The ADEA applies only to employers with 20 or more employees. The ADEA largely follows Title VII procedures, including the 180-day statute of limitations.⁶

Can I get equal pay if I am gay, transgender, or non-binary?

Yes. In California, anti-discrimination protections based on sex extend to being gay, transgender, or non-binary. Employers may not pay you less due to your actual or perceived:

• gender identity,
• gender expression, or
• sexual orientation.⁷

Can I get equal pay even if I am undocumented?

Yes. In California, undocumented workers are entitled to the same wage and hour protections as other workers under state law, including equal pay. Employers may not discriminate against you in terms of pay based on your immigration status.⁸

Note that if you file a wage claim with the California Labor Commissioner to recover unpaid wages, they will not ask you about your immigration status or report you to authorities.

Can I ask about coworkers’ wages?

In California, your employer is not obligated to tell you what your coworkers are earning. However, you have the right to discuss your wages and the wages of your coworkers without fear of retaliation or termination by your employer.

If your employer does retaliate against you for discussing wages, you can file a retaliation claim with the California Labor Commissioner.⁹

Additional Resources

For more information, refer to the following:

• What is Employment Discrimination – Summary by the Equal Employment Opportunity Commission (EEOC).
• Know Your Rights: Workplace Discrimination is Illegal – Info sheet from the U.S. Department of Labor (DOL).
• Discrimination, harassment, and retaliation – Brief guide by USA.gov.
• Types of Discrimination – Overview by the Centers for Disease Control and Prevention (CDC).
• 91% of workers have faced workplace discrimination—here’s what employees can do, expert says: ‘No. 1 is to speak up and document things’ – Article by CNBC.com.