California could become the first state to close the gender wage gap

A woman working full-time in California can expect, on average, to be paid 84 cents for every dollar a man earns. This amounts to a yearly salary disparity of more than $8,000. In keeping with national trends, the wage gap is worse for women of color. Black women working full-time in the state make 64 cents, and Latina women make just 43 cents, for every dollar a non-Hispanic white man earns.

When it comes to addressing sexist pay disparities—which, according to data from the Bureau of Labor Statistics, exist in all but seven of the Bureau’s 600 listed occupations—the response from Congress has been ¯_(ツ)_/¯.

But on Tuesday, California acted to address its gender wage gap by adopting what might be the toughest equal pay law in the country.

In California, like in every other state, men who serve food, drive buses, work in hospitals, run tech startups, and babysit—yes, even babysitters!—earn more, on average, than the women who do similar work. California’s law would give women more leeway to challenge unequal pay by expanding existing law to cover “substantially similar work” rather than “equal work.” It would also put employers on the hook to defend pay disparities and demonstrate that they aren’t just about an employee’s gender.

From the bill:

This bill would revise that prohibition to eliminate the requirement that the wage differential be within the same establishment, and instead would prohibit an employer from paying any of its employees at wage rates less than those paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, as specified.

The bill would revise and recast the exceptions to require the employer to affirmatively demonstrate that a wage differential is based upon one or more specified factors, including a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a bona fide factor other than sex, as specified.

This is a pretty important change. It shifts the onus from employees to employers to prove gender wasn’t the determining factor when it comes to pay disparities, and extends existing equal pay protections to workers who have different titles but similar responsibilities. As the bill’s sponsor, state Sen. Hannah-Beth Jackson, told the Los Angeles Times, this means that a woman who works as a housekeeper and cleans rooms at a hotel has grounds to challenge a pay disparity with a man who works as a janitor in the hotel’s lobby.

The law also prohibits retaliation against employees who share salary information, which is often how women find out they’re being paid less in the first place. (Lilly Ledbetter, the namesake of a federal equal pay law, found out her male colleagues had been making substantially more than her for decades after one of them slipped her an anonymous note, a violation of the company’s policy barring employees from sharing salary information.)

Critics of the bill allege that strengthened equal pay laws will mean more lawsuits, and will hurt businesses as a result. “It is going to lead to lots more litigation, which further weakens the business climate in California,” J. Al Latham Jr., a labor law attorney and lecturer at the USC Gould School of Law, also told the Los Angeles Times.

This echoes Republican criticism of similar legislation in Congress: that equal pay laws are just fuel for lawsuits, not actually about equal pay. California’s new legislation may finally test that theory.

And while I’m not a legal expert, I’d venture a guess that one clear way to avoid gender-based wage discrimination lawsuits is to pay your employees fairly before they sue you. The California law may inspire employers to test that theory out, too.