Female employees in California are poised to get new tools to challenge gender-based wage gaps and receive protection from discrimination and retaliation if they ask questions about how much other people earn.
A bill recently passed by the Legislature and that Gov. Jerry Brown has indicated he will sign won't suddenly put all women's salaries on par with men's or prod employers to freely disclose what every employee makes, which could make it easier for workers to mount pay discrimination claims.
But the legislation expands what supporters call an outdated state equal pay law and goes further than federal law, placing the burden on the employer to prove a man's higher pay is based on factors other than gender and allowing workers to sue if they are paid less than someone with a different job title who does "substantially similar" work.
So, a supermarket clerk could challenge her pay based on what a male clerk might earn at the same supermarket 10 miles away. Or housekeepers at a hotel could challenge their pay based on what janitors make at the same hotel, arguing that they do similar work. The pending legislation allows them to learn pay details from asking clerks or janitors at other locations, again, without fear of blowback from management.
"The requirement that they be in jobs that are identical has really hindered women from bringing suits and has failed to provide appropriate incentive for employers to make sure they're not engaged in subtle discrimination," said Deborah Rhode, a law professor at Stanford Law School and expert on gender discrimination.
California's labor commissioner, for example, has received only a handful of complaints in recent years alleging violation of the state's equal pay provision, said Jennifer Reisch, legal director of Equal Rights Advocate, which lobbied on the bill: Eight in 2012, 7 in 2011, and 6 in 2010.
That's tiny, she said, when compared to other pay-related complaints.
The goal, however, isn't to clog the courts with new lawsuits, she said, although the newer standards should make it easier to prevail on a lawsuit.
"What it's designed to do is to make the enforcement more attainable and to remove barriers to effectuating the purposes of the law, which is to make sure that women and men are being paid equally for doing substantially similar work," she said.
Starting Jan. 1, women can file these expanded claims in court or through the state labor commissioner's office.
California's pending Fair Pay Act stipulates employers can justify higher wages for men only if the pay is based on seniority, a merit system, quantity or quality of production, or any other "bona fide factor other than sex." It cleared the Legislature with bipartisan support and the backing of the state Chamber of Commerce.
The legislation would also make California one of a several states to prohibit employers from discriminating or retaliating against a worker for asking how much her counterparts earn, said state Sen. Hannah-Beth Jackson, D-Santa Barbara, who sponsored the bill. A similar provision in Congress has stalled for years.
"This is a very specific and explicit provision," she said, "that there can be no retaliation."
But there's no obligation that employers provide salary information, leaving some questioning how effective the provision might be in promoting pay equity. Also, California has long had a law prohibiting employers from requiring employees to keep quiet on their own wages.
The new law "arguably goes a little bit further than current state law but I don't think employers were drawing that fine a distinction," said Michael Kalt, an employment lawyer and lobbyist for CalSHRM, the state chapter of the Society for Human Resource Management.
Supporters of the bill cite studies showing that on average, full-time female workers in California earn 84 cents for every dollar that a man makes, losing out on roughly $33 billion a year.
That's a collective figure and doesn't mean, for example, that all female workers at a company earn less than their male colleagues who do the same work. It does mean that women as a group earn less than men for a variety of reasons — because they may have taken time out to raise children or they're overrepresented in lower-paying jobs or perhaps they weren't as aggressive as their male counterparts in seeking a raise.
State lawmakers say they were motivated by heartfelt pleas for equal pay from high-profile Hollywood actresses at this year's Academy Awards. Lawyer Ellen Pao also made national waves when she filed a gender discrimination lawsuit against a prestigious venture capital firm in Silicon Valley.
While she lost, the publicity prompted embarrassed soul-searching in an industry dominated by male managers.
Elizabeth Ames, vice president at the Palo Alto-based Anita Borg Institute, said legislation alone can't reverse decades of wage discrimination, but gaps going forward also can't continue in an age where women are taking home a majority of the advanced education degrees.
"They represent a huge percentage of our intellectual capital, and for them to be under-rewarded, under-promoted and under-represented is a problem," Ames said.