Salary History Does Not Justify Gender-Based Pay Discrimination

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There has been a relatively stable gender pay gap in the United States over the past 15 years. In 2020, Pew Research Center analysis of median hourly earnings of both full and part-time workers showed that women earned 84% of what men earned. Given this number, a woman would need to work an additional 42 days per year to earn the same pay as a man in a similar job. One of the many reasons employers use to defend alleged gender pay discrimination is salary history, however, this doesn’t account for the gender pay gap.

What is the Gender Pay Gap?

The gender pay gap refers to what women are paid in comparison to men. As the nation has held onto a fairly steady gender pay gap for the last 15 years (as stated above), when an employer bases compensation decisions on salary history, women are at a disadvantage.

What is the Equal Pay Act?

California took action to address the issue. The common practice of basing pay rates on past salary history often results in wage disparities and gender-based pay discrimination. To counteract the problem, California banned private and public employers from seeking a candidate’s salary history; even if the employer already has the information or the employee or applicant supplies it voluntarily, California employers cannot use salary history as a means of determining a new hire’s pay rate. Under the Equal Pay Act employers are required to provide equal pay for equal work for men and women in the same workplace. The jobs they fill do not necessarily need to be identical as long as they are substantially equal. Under the Equal Pay Act (as amended effective January 1, 2019), California employers may not justify a pay difference between male and female workers based on an employee's prior salary.

What is Gender-Based Pay Discrimination?

Many employers, some without even realizing it, hire women at a notably lower rate of pay than male applicants for the same job. Some do so based on salary histories that are a reflection of the gender pay gap prevalent throughout the nation. When a female hire is paid less than male counterparts in the same or similar job position, they may be able to seek restitution for the gender-based pay discrimination. Gender-based pay discrimination is also a common problem when employers are considering employees for promotion, transfer, annual pay raises, etc.

Is Salary History a Solid Justification of Gender-Based Pay Discrimination?

If a California employer attempts to justify gender-based pay discrimination in the workplace by referencing salary history, there is a problem. Employers in California cannot ask job applicants about their salary history. In fact, if the applicant asks, California employers are required to provide the applicant with a salary range for the position being considered.

It’s been over 50 years since pay discrimination was made illegal in the United States, however, the steady nature of the pay gap between male and female employees indicates that many workplaces are in violation of pay discrimination laws.

If you are experiencing gender pay discrimination, and you have questions about what you can do to protect yourself in the workplace, get in touch with Moss Bollinger, Oxnard, California employment law attorney. He’s dedicated to protecting and asserting the rights of his clients. Call 866-942-7974 today for a free consultation or contact us online.

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