Unequal Pay Based on Race, Gender or Disability is Unlawful Discrimination

Posted by Joe Sayas | May 13, 2022 | 0 Comments

Q:        I hear a lot of talk about “diversity” and “pay equity” in the workplace. I live in California and, yes, I work with a “diverse” group of people in terms of race, age, gender, etc. But it is obvious to me that there is no “pay equity” in this diversity. How, as an employee, can I even begin to address this with my employer? Should I even bother?

A:        Diversity in the workplace is a noble goal. While we continue to work for a world where, someday, people of all races, genders, ages, etc. are fairly represented in all workplaces, we are far from such a utopia. Perhaps part of the difficulty is that even though workplaces may hire more “diverse” workers, this hiring does not necessarily translate into paying or even promoting the diverse workforce equitably. This ultimately results in a lack of diversity at the management levels which make decisions that could potentially end the vicious cycle of inequity and lack of inclusion.

Based on the latest data from 2020, an analysis conducted by the National Women's Law Center continues to show that working women were paid 73 cents on the dollar compared with working men, despite there being more women in the workforce. Women of color are paid even less than white women, with black women making 64 cents on the dollar compared to white men, while Latina and Native American women made just 57 cents.

California law prohibits discrimination on the basis of a person's protected characteristics, namely: race, color, national origin, religion, sex, familial status, and disability.  Discrimination comes in many forms: refusal to promote; unequal pay; and unequal treatment in terms of socio-business relations. Several laws have been enacted to address discrimination based on each of these protected characteristics.

For example, under California's Fair Pay Act, an employer is prohibited from paying wage rates that are less than what it pays employees of the opposite sex, or of another race, or of another ethnicity, for substantially similar work and performed under similar working conditions. If differences in wages exist, the difference must be legally justified based on factors that have nothing to do with sex, race, or other protected characteristics (for example, seniority or merit systems).

As an employee who sees pay inequity in the workplace, what should you do? Start by asking the following questions:

  • Does the company maintain public records of its job positions and wage rates? If so, can you access these records?
  • Does the employer post job classifications online? What are the wage rates and how does it compare with yours or other employees'?
  • Does the employer have a diversity, inclusion, and pay equity policy in place? Are you able to determine whether this policy is followed?

Consider the case of Michael Cuenca who worked for Kaiser Permanente for 10 years in Kaiser's diversity, inclusion, and human resources department. Cuenca was the only Hispanic person in a group of four workers doing substantially the same work. Of the four, he was the lowest-paid, even though he had the most experience in the group. His efforts to get promoted were continually denied.

After several attempts to get management to remedy the pay and promotion inequities for Hispanic employees, Cuenca left the company and sued Kaiser on behalf of himself and others, alleging that Kaiser has maintained a policy of discrimination in hiring and promotions despite its Affirmative Action Plan. Hispanic employees who were actually hired or promoted were paid lower than their counterparts. 

Cuenca alleged that Kaiser is required to maintain records of wages and job classifications of all its employees in California and should have been able to track that it paid its Hispanic employees less than employees of other races for substantially similar work. Cuenca claimed that his complaints to management should have alerted Kaiser to the disparities. However, Kaiser failed to make things right.

Rather than proceed to trial, the parties, as reported by the Daily Journal, agreed to settle for $7.4 million, with Kaiser agreeing to make changes that would result in equity throughout the company (the parties pegged these changes an additional $9 million in value).

So should you bother advocating for equity and inclusion at work? That's a resounding yes! Because if not you, then who?  

About the Author

Joe Sayas

C. JOE SAYAS, JR., Esq. Recognized as one of California's top employment and labor law attorneys by the Daily Journal, C. Joe Sayas, Jr. has devoted his more than 25-year litigation career to protecting workers' and consumer rights. He has fought for employees discriminated due to disability, ra...


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