Man looking over papers


Steven E. Springer Oct. 5, 2015

The California legislature recently passed a bill amending the state’s Fair Pay Act and providing greater protections against sex discrimination in wages.

The bill generally prohibits employers from paying employees wage rates that are less than those paid to employees of the opposite sex who are doing substantially similar work. Gov. Jerry Brown has stated that he plans to sign the bill, which will go into effect on January 1, 2016.


Senate Bill 358 requires employers from paying an employee less than they pay employees of the opposite sex for substantially similar work. Federal and current California law, in contrast, require equal pay only for employees doing equal work. To determine what constitutes substantially similar work, courts will look at the skill, effort, and responsibility required by the job, and at the working conditions under which the job is performed.

Current law requires that employees in the same establishment be paid the same for equal work. The new law eliminates the “same establishment” language, allowing the comparison of wage rates with employees at different locations.


There are a few exceptions to the equal pay requirement. It does not apply if the wages are based on a:

  • Seniority system;

  • Merit system;

  • System measuring earnings by quantity or quality of production, e.g. commissions; or

  • A bona fide factor other than gender, e.g. experience, education, or training.

The fourth factor only applies if the employer can show that the factor is unrelated to any sex-based differential, is related to the relevant position, and is a business necessity. A business necessity exists when the employee can demonstrate that there is an alternative method that would serve the same overriding legitimate business purpose, but would not create the wage differential. If there is no business necessity, the employer cannot use this defense.

If an employer wishes to use one of these exceptions, the employer has the burden of proof. The employer must show that any difference in pay is not based on gender, and that the factors used account for the entire difference in wages.


Employees who have suffered wage discrimination under this law have the right to a civil lawsuit. They may also file an administrative claim with the California Department of Labor Standard Enforcement. Employees may recover wages due, liquidated damages equal to wages due, and interest. In a civil suit, they can also recover attorney’s fees and costs.


The Fair Pay Act also includes an anti-retaliation provision. Employers may not prohibit their employees from talking about their own wages, discussing or asking about the wages of other employees, or enforcing their own rights or encouraging other employees to protect their rights under the Fair Pay Act.

If you have suffered sex-based wage discrimination, a skilled Morgan Hill business law attorney can help you recover compensation. Please contact The Law Offices of Steven E. Springer, at 408-779-4700, for a free 20 minute initial consultation with an attorney in Morgan Hill, San Jose or Fremont.