California Fair Employment and Housing Act (FEHA)

The California Fair Employment and Housing Act (FEHA) makes it “an unlawful employment practice” for an employer to terminate an employee or otherwise discriminate against the employee “in compensation or in terms, conditions, or privileges of employment” based on that employee's gender (among other characteristics). (Gov. Code § 12940(a).)

Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a Complaint with the Department of Fair Employment and Housing (DFEH), and must obtain from the DFEH a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal. 4th 479, 492.) This administrative Complaint must be filed within one year “from the date upon which the alleged unlawful practice or refusal to cooperate occurred.” (Gov. Code 12960(d).) The failure to exhaust this administrative remedy is a jurisdictional defect. (Miller v. United Airlines, Inc. (1985) 174 Cal. App. 3d 878, 890.)

California Equal Pay Act (EPA)

Similarly, the California Equal Pay Act (EPA) exists “to ensure that employees performing equal work are paid equal wages without regard to gender.” (Hall v. County of Los Angeles (2007) 148 Cal. App. 4th 318, 323.) As the statute originally mirrored the Federal Equal Pay Act of 1963 (29 U.S.C. § 206, subd. (d)(1)), California courts rely on federal authorities construing the federal statute in interpreting the Equal Pay Act. (Green v. Par Tools, Inc. (2003) 111 Cal.App.4th 620, 623.)

Few California cases address the EPA: “The apparent reason is that an aggrieved employee generally brings suit under both the California statute and the federal Equal Pay Act... or under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a)) or its federal counterpart, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).” (Green v. Par Tools, Inc. (2003) 111 Cal.App.4th 620, 623.)

According to the California Equal Pay Act, “[a]n employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” (Labor Code § 1197.5(a).) Otherwise, the employer must demonstrate that “[t]he wage differential is based upon one or more of the following factors:

1. A seniority system.
2. A merit system.
3. A system that measures earnings by quantity or quality of production.
4. A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that 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.”

(Labor Code § 1197.5(a).)

Similarly, “[a]n employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” (Labor Code § 1197.5(b).) Otherwise, the employer must demonstrate that “[t]he wage differential is based upon one or more of the following factors:

1. A seniority system.
2. A merit system.
3. A system that measures earnings by quantity or quality of production.
4. A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that 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.”

(Labor Code § 1197.5(b).)

The three-stage burden shifting analysis used to establish sex discrimination under the federal Equal Pay Act is applied to a claim under Labor Code section 1197.5. (Green v. Par Tools, Inc., supra, 111 Cal.App.4th at pp. 623-626.) Under this standard, once the plaintiff makes a prima facie showing in support of her claim, “the employer then has the burden of showing that one of the exceptions listed in section 1197.5 is applicable.” (Id.) The employee may then show that the employer’s stated reasons are pretextual. (Id.)

The elements of a prima facie case under the EPA are

1. the employer paid a male employee more than a female employee
2. for equal (or, since 2016, substantially similar) work on jobs the performance of which requires equal skill, effort, and responsibility, and
3. which are performed under similar working conditions.

(Green v. Par Pools, Inc., supra, 111 Cal.App.4th at p. 628; Corning Glass Works v. Brennan (1974) 417 U.S. 188, 195; CACI No. 2740 (2019).)

To make this prima facie showing, a plaintiff must ultimately demonstrate that she is paid lower wages than an appropriate “male comparator” for equal work. (Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324-325.) An EPA plaintiff “need only establish that she was paid less than a single male employee for equal work on the basis of sex to prevail on her claim” and “need not establish a pattern and practice of sex discrimination.” (Dubowsky v. Stern, Lavinthal, Norgaard & Daly (D.N.J. 1996) 922 F.Supp. 985, 990-991.) While no California case has addressed this issue, some federal courts have held that a specific, appropriate comparator must be identified and described in some detail even at the pleading stage.

“A civil action to recover wages under subdivision (a) may be commenced no later than two years after the cause of action occurs.” (Labor Code § 1197.5(h).) The two-year limit of subdivision (h) is “both a filing requirement and a limitation upon recovery.” (Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 105.)