Q&A: How California Fair Pay Act can — and can’t — help women

Actress Patricia Arquette’s call for wage equality during her 2015 Oscar acceptance speech brought an issue affecting countless women to the forefront and inspired one of the toughest equal pay laws in the nation.

The California Fair Pay Act, which was signed by Gov. Jerry Brown in early October, closes key loopholes in past anti-discrimination legislation by ensuring that male and female employees performing “substantially similar” work are paid equal wages, even if they have different job titles or work in different offices under the same employer.

The law also has an anti-retaliation clause, which allows employees to ask about and discuss co-workers’ wages without fear of punishment. Any wage differences between male and female employees must be attributed to merit, seniority, a system that measures earnings by quantity or quality of production, or a “bona fide” factor other than sex that is a legitimate business necessity.

The law applies to both public and private businesses and has no exemptions for small companies with few employees.

The Times spoke with Martha West, a law professor emerita at UC Davis, about the implications of the new law. West published a report in 2005 that analyzed the drastic decline in hiring of female faculty across the University of California system after the passage of Proposition 209, which prohibited affirmative action in public institutions. Here is an edited excerpt of that conversation.

What were your first thoughts when reading the Fair Pay Act?

I was very excited, because the standard of “substantially similar” work is quite a bit broader than the prior standard of “equal work.” So the significance is between the word “equal” and “similar.”

Why is that?

The courts interpreted “equal” very strictly. So you really had to be doing exactly the same job to have a claim. If there are small differences in the job, the court could still hold that they are “similar” even though they are not exactly the same. The job title is not controlling — it’s the actual work being done by the person.

But the big limitation, as I read it, is the same old limitation under the prior law, which is there must be both men and women doing the work. So if it’s a single-sex job like, let’s take secretary, most secretaries are still women. So if you’re in a big firm and you’re a secretary, if there are no men secretaries, you can’t use the statute to complain about low pay.

You still have to have some degree of gender integration in the job category because you have to compare the wages men are getting to the wages women are getting.

Walk me through how someone would file a complaint.

An employee can file a complaint with the Division of Labor Standards. Then the agency would investigate the complaint, and the agency can enforce the statute itself against the employer.

But the employee also has the option of filing their own lawsuit, instead of going through the agency. So they get back pay and an equal amount of liquidated damages and they can also get attorney’s fees if they win. That’s very important because back pay is usually not a very large award, and it’s not enough to compensate attorneys for taking on these cases, so it’s very important that these attorneys can also recover attorney’s fees.

Why is it difficult to find lawyers to take these kinds of cases?

Most employees don’t make enough money to pay attorneys to go to court, and even under this law the attorney has to finance the legal [expenses] until they win. There’s not a big pot at the end. The cases where the attorneys are easier to find are where you can get damages, usually for intentional violations. This limits it to back pay.

That’s why it’s important that these actresses start doing it because they make a lot of money and they’ll have an easier time finding attorneys to take their cases. A double back pay award for an actress should be a substantial sum.

Do you think this could lead to similar laws throughout the country?

It could. California has as a reputation for leading the way in lots of areas.

Some have said this law will only result in increased litigation or will drive companies out of California. Could this be a possibility?

I don’t think so. The employer community always says that about every law, but California has had much better labor employment laws for years than most other states. You can still see how difficult it will be to frame a case under this statute. I don’t think this will have much of an impact at all on employers in California or employers wanting to come to California. Hollywood is not going to move away.

Twitter: @smasunaga