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California gender-based pay law amended in material way

Gender-based pay inequality in California might have been dealt a serious setback earlier this week when Gov. Jerry Brown signed Senate Bill 358. And it is possible that material change could rest heavily on the mere substitution of a couple new words for a single word that existed in a previous state labor law.

At first glance, some readers of our employment law blog might understandably not perceive much difference between the terms "equal" and "substantially similar."

Closer scrutiny of SB 358 and its predecessor enactment, California Labor Code section 1197.5, though, underscores the rationale for the amended language and helps explain why proponents against gender--based pay differences believe the new law might yield strong and salutary changes.

The former law required any person alleging a wage gap based on gender to prove that she (obviously, wage differential between the sexes has adversely impacted female workers far more than male employees, although not exclusively so) was performing equal work based on equal skill and responsibilities, and in the same establishment.

As noted in a recent article on SB 358, an employer could skirt liability under the old law by arguing that pay differential was based on any number of factors unrelated to gender.

That will be harder to do under SB 358. The law's "substantially similar" language is intended to lower the proof threshold for complainants, and there is no longer a "same establishment" requirement.

And new language will make it harder for employers to defend against gender-based claims. Specifically, an employer facing such a claim must now demonstrate to the State Division of Labor or a state judge that factors it relied upon that benefited one worker more than another were applied reasonably. Moreover, that employer must also show that the factors cited were the sole reasons for resulting pay inequality.

The new law will undoubtedly come into play in a major way and be much discussed in the future. We will be sure to keep readers apprised of any material developments that arise concerning SB 358.

Source: The National Law Review, "New California law eases employees' burdens in proving gender-based pay claims and creates additional protections for employees to discuss their wages," Conor J. Dale, Oct. 7, 2015