174 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com applicant’s presence in the United States is authorized under federal law.”215 This provision allows those who are not legally in the country to obtain a driver’s license if they can provide valid proof of identity and California residency. And, in the same vein, employers must not require applicants or employees to present a driver’s license, unless the law requires the license or permits the employer’s requirement. Further, failing to apply the requirement uniformly or for a legitimate business purpose may amount to discrimination because of national origin. But any action an employer takes to comply with any federal requirement or prohibition would not be a violation.216 And the U.S. Constitution preempts state laws that directly conflict with federal law,217 so that it could be difficult to predict whether a court would find a violation where an employer has discriminated against a special licensed immigrant who is not authorized to work in the United States. 6.6.3 Other protections for inadequately documented workers California, seeking to protect immigrants, has been a national leader in resisting federal immigration agencies, and in actively discouraging employers from cooperating with those agencies. California in this context has not limited itself to traditional concepts of national origin discrimination. California has enacted many other immigrantprotection laws, discussed elsewhere. (See § 5.17.) 6.7 Equal Pay For many years, the Labor Code forbade California employers to pay an unequal wage for equal work on the basis of sex and made violating employers liable for double damages to employees who suffered that form of pay discrimination,218 and also subject to criminal liability.219 In 2015 the Legislature went further, making employer obligations substantially more onerous and giving California one of the nation’s more aggressive equal pay laws. In successive years California has turned the Equal Pay screws ever tighter. Differences from federal law. Federal law addresses gender-based pay discrimination. Title VII forbids pay discrimination because of any protected status, and the federal Equal Pay Act gives women a right to equal pay for equal work. California’s peculiar version of the Equal Pay Act has expanded employer obligations well beyond federal law as to any pay differentials observed among employees of different genders, races, and ethnicities: Employees can be compared even if they do not work at the same establishment. This means that the pay of an employee may be compared to the pay of other employees who work hundreds of miles apart. Employees can be compared even if they do not hold the “same” or “substantially equal” jobs. Plaintiffs need only show that the employees are engaged in “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”220 Employers, in defending pay differentials, can cite only certain factors and must apply them reasonably, and the factors, when viewed together, must explain the entire pay differential.221 California thus has dramatically lowered the bar for equal pay suits, permitting plaintiffs to compare themselves with persons working at any location for the same employer, and in any similar—not necessarily the same—job. While Title VII does not require a showing of “equal work” within the same establishment (as the federal Equal Pay Act does), Title VII does require a showing of discriminatory intent or a specific practice or policy with a discriminatory impact—a showing that California does not require.
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