Fair pay isn’t just a legal issue; it’s an issue of respect. What happens when you suspect you’re not being paid fairly, and a coworker who is doing the same job is making more than you? Furthermore, how can you prove pay discrimination if your employer has a strict “don’t ask, don’t tell” policy on wages?
There’s good news: California and federal law allow you to attack unequal pay even if you don’t have direct proof of discrimination. In fact, most equal pay lawsuits are based on circumstantial or indirect evidence.
Below, we will walk you through what you need to know about proving your case and how an employment lawyer can help you recover your lost wages.
The Basics: Equal Pay Laws
Both federal law (the Equal Pay Act of 1963) and California law (the California Equal Pay Act) require employers to pay men and women equally for the same work.
California law, however, goes further and prohibits unequal pay for “substantially similar work” when such work is viewed as a composite of skill, effort, responsibility, and working conditions.
Practically speaking, this means the following:
- Job titles don’t matter. What matters is the work itself.
- You can compare pay between employees at different company locations.
- Employers must prove that pay differences are based on factors such as seniority, merit, production quality/quantity, education, training, or experience, and that those factors were reasonably applied and account for the entire pay differential.
Why You May Not Have Direct Evidence of Discrimination
Direct evidence of discrimination, such as an email stating, “We pay men more than women,” is very rare. Smart employers know that such evidence can and will be used against them in a lawsuit, so they take steps to avoid leaving a paper trail.
Most successful equal pay cases are built on circumstantial evidence — facts that, taken together, lead to the conclusion that discrimination is the most likely explanation for the pay differential.
How To Build an Equal Pay Case Without Direct Evidence
1. Identify a comparator
Begin by identifying one or more employees who fall into one or more of these categories:
- Are employed by the same employer
- Perform substantially similar work
- Have similar levels of skill, effort, and responsibility
- Work under similar conditions (e.g., same shift or same department)
Your job title or every single job duty doesn’t have to match your comparator(s). “Substantially similar” work is not the same as “identical” work.
2. Document pay disparities
Get as much information about pay as you can, including the following:
- Your own pay stubs, offer letters, and bonus history
- Job postings and other publicly available salary ranges
- Reliable pay data from coworkers who are willing to share
- Employer handbooks or policies that mention pay scales
California is an “at-will” employment state, meaning that you can be fired for almost any reason. One exception is retaliation. Your employer cannot legally retaliate against you for discussing your wages or salaries with coworkers, and your attorney may be able to use any retaliation against you to win you additional damages.
3. Track your qualifications and workload
Keep a record of your education, training, certifications, performance reviews, and extra duties. This helps show that you are equally or more qualified than the employee you are comparing yourself to.
4. Look for patterns
One pay disparity may be coincidental or explained by nondiscriminatory reasons. Patterns of pay discrimination, however, are harder to explain. Do female employees tend to make less than males in your department? Do employees of color consistently make less than white employees with similar jobs? Patterns of disparity are good evidence of discrimination.
5. Preserve emails and other communications
Keep copies of any emails, performance feedback, or conversations that relate to your pay. Don’t throw away your “old” pay stubs either. Small comments (e.g., “We don’t have a budget to pay you like John”) can be relevant, as can performance feedback in contexts where higher performers are typically paid more.
Remedies for Pay Discrimination
Below are the remedies or potential recoveries in an equal pay case:
- Back pay for the difference in wages you were paid and what you should have been paid
- Interest on unpaid amounts
- Liquidated damages (double damages) in some cases under federal law
- Attorneys’ fees and costs so that you aren’t out of pocket for enforcing your rights
- Injunctive relief, which may correct pay practices for the future
Steps To Take Right Now
Don’t wait — start documenting now. Hang on to pay stubs, job postings, performance reviews, and similar pieces of information. Collect pay data from comparators. Ask coworkers directly if they are comfortable sharing pay data or comb through public salary ranges.
Also, be sure to think carefully before quitting. Quitting your job before talking to an attorney may weaken your claim and complicate the calculation of damages.
Act quickly. The statute of limitations (the deadline to file a claim) for equal pay claims in California is two years, or three years if the violation was willful.
An Employment Attorney Can Help With Your Equal Pay Claim
An employment attorney can help you with the following:
- Compare your job duties to your comparator’s
- Review payroll data and HR policies
- Calculate the wages you may be owed
- File a claim with the California Labor Commissioner or file a lawsuit
- Negotiate a fair settlement or represent you in court
- Protect you from retaliation or seek additional damages if you are retaliated against
Most employment attorneys work on a contingency fee basis, which means you pay no up-front legal fees and only pay if they recover money for you.
Speak With an Employment Attorney at Our Firm as Soon as Possible
Pay discrimination is a difficult issue, but it is not insurmountable. Such cases are possible to win, even with circumstantial or indirect evidence. That said, we encourage you to work with an experienced attorney to present the strongest case possible. Equal pay is not just an ideal — it is the law. If you suspect you are being shortchanged because of your gender, race, or another protected characteristic, take action. The sooner you start, the more evidence you can preserve and the stronger your claim will be. Contact us right away.
