©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 173 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 discrimination220 and also made them subject to criminal liability.221 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.”222 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.223 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. California requires equal pay defendants to affirmatively demonstrate that any pay differences are based on one or more of a limited number of factors.224 The permitted reasons for differences in pay are: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and a bona fide factor other than sex such as education, experience, and training. Employers may rely on such a factor only if the employer proves the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a “business necessity” (i.e., the factor relied upon effectively fulfills the business purpose it is supposed to serve). Moreover, this defense will not apply if the plaintiff shows that an alternative business practice would serve the same business purpose without producing the pay differential.225
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