Pay Discrimination

How to use this guide

• Important note: Unfortunately, we are unable to accept new applications for our Free Legal Advice & Counseling program at this time.

Content warning: This guide contains information and examples of pay discrimination based on gender identity and perceived gender identity that may be triggering for you, because instances of discrimination can be traumatic. Please be aware of your emotional and mental needs while reading.

How to use this guide: The purpose of this Know Your Rights Guide is to help you understand your rights and options if you have experienced pay discrimination at work. This guide is not official legal advice. Laws frequently change and can be interpreted in different ways, so we cannot guarantee that all of the information in this Guide is accurate as it applies to your specific situation. 

What are the laws?

Federal law (applies in all states)

1.  Title VII of the Civil Rights Act of 1964 says it is illegal for an employer of 15 or more employees (a “covered employer”) to discriminate against you based on your sex, race, color, religion, or national origin. It is also illegal for a covered employer to pay you less, fire you, not hire you, or discriminate against you in terms of working conditions based on any of the above categories. 

2.  The Equal Pay Act of 1963 says sex-based pay discrimination is illegal, meaning your employer must pay you the same amount as one or more coworkers of “the opposite sex” who work in the same establishment and do equal work, under similar working conditions. The jobs do not need to be identical, but they must be “substantially equal.” The actual work being performed (not job titles) determines whether jobs are substantially equal, and this is determined by looking at whether both jobs require the same skill, effort and responsibility.

State equal pay laws

Most states (48 of 50) have additional equal pay laws to protect you. To learn about your state’s equal pay laws, we recommend this guide from our friends at AAUW.

1.  California Fair Pay Act.  Under the law, your employer must pay you the same as a coworker of the opposite sex, or of a different race or ethnicity, if they are doing work that is “substantially similar” to yours. To decide that two employees are performing “substantially similar work,” the two jobs must require similar skills, amounts of effort, and levels of responsibility.

• For more information about how to compare jobs to determine if they are “substantially similar” under the CA Fair Pay Act, see these resources created by the California Pay Equity Taskforce.

• Exceptions: Under the law, there are certain valid reasons that an employer may have for paying employees of the opposite sex (or of a different race or ethnicity) differently for substantially similar work. For example, if the pay difference is based on different levels of experience or education, a seniority-based pay system, a merit-based pay system, or some other valid “bona fide factor” other than sex, your employer could have a valid defense for paying you less. For example:
  • If you work on commission, you might be able to take legal action if you are being paid a lower rate than a coworker in the same position, who does not have higher levels of education or experience. However, if you are paid the same rate on commission as the coworker, but a coworker gets more money because they make more sales, for example, there may not be a legal violation.
  • If you work a different shift than your coworker, there may be a valid justification for a pay difference. For example, if the different shifts mean you and your coworker deal with a different volume of customers, sell different products, or have different duties, it might be legal for your employer to pay them more.

2.  Use of Salary History.  Under California law, an employer cannot justify paying someone less based on the employee’s prior salary. It is also illegal for an employer in California to ask a prospective employee about their prior salary or use it to set pay, unless the prospective employee voluntarily chooses to share that information.

What can I do?

If you believe you are being paid less than a coworker due to your sex or gender identity (or in California, your race or ethnicity) for substantially similar work, here are some actions you can take. Remember: It is normal to be afraid or worried about standing up for your right to fair pay. Do what is best for you. These are just examples of options you might want to consider.

1.  Review your employer’s polices. Many employers give you an Employment Manual or Handbook when you start a new job. Review this to find out what policies might be in place to protect you. Look for policies relating to compensation, assignment of duties, promotion processes, and/or discrimination. Find out what your company’s complaint procedure is, and pay close attention to deadlines.

2.  Gather relevant documents. Before filing an internal complaint or taking legal action, you should gather any “proof” about the pay discrimination.

• Gather information about your pay, your coworker’s pay, and if possible, your coworker’s job duties, education, and work experience. This could include pay stubs and job descriptions.
• Talk to other people in your same line of work at different companies about their pay and benefits.
• Keep notes about any conversations or meetings you have related to your pay, including conversations with your supervisor or HR. Record the time, date, and place of the meeting, and who was there. Write down who said what. If you’re comfortable doing so, ask witnesses to write down what they heard or saw. Keep these written accounts at home, in a personal email account, or in another safe place not related to your work.
  • Tip: Others may read these written records at some point. So it’s important to be as objective as possible when writing down what happened. It is best to stick to the facts.
• If there are any relevant letters, emails, text messages or other communications, save and gather them in one place.
• Keep copies of complaints or reports you file with your company, and all responses.
• Keep copies of any other documents related to your pay.
• If you think your employer has retaliated against you, keep written notes of every action that has happened.

3.  Report the pay difference to your boss or HR.  If your employer has an internal complaint process, you may consider filing an internal complaint.

• Note: Filing an internal complaint with your employer does not extend the deadline for filing a charge with a government agency or a lawsuit in court.
• Or, in the absence of formal internal complaint process, you could report in writing, by submitting a short letter or email. Be sure to keep a copy.
• If you want to have a conversation in person or on the phone, try practicing what you’ll say with a trusted coworker or friend. Think of difficult questions that may come up, so you can have answers prepared.
  • If you do report orally (in person or on the phone) rather than in writing, we recommend sending a follow-up email or letter confirming what happened during the conversation. For example:
    • Dear [name of Supervisor or Human Resources Staff],
      I’m writing to confirm that we met today, 2024, to discuss the fact that I am being paid less than [coworker(s) names], who have the same job as me, and the same years of experience [etc]. I found out about the pay discrepancy [when and how]. You told me [description of employer’s response]. Thank you for taking the time to meet with me about this issue. [Your name]”

4.  Go to your union. If you’re a member of a union, you could talk to your union rep or shop steward and consider filing a grievance. Ask about the collective bargaining agreement and whether it includes provisions about pay discrimination or gender/sex discrimination.

• Tip: If you use your union’s grievance procedure, this does not extend the deadline for filing a charge with a government agency or a lawsuit in court.

5.  Join forces with coworkers to take collective action. You could come together with other workers to demand a meeting with your employer, submit a petition, or take some other action.

6.  File a complaint with a government agency or a lawsuit in court. If you reported the pay discrimination to your employer and they have not fixed it, or if you choose not to pursue the matter internally, you can file a complaint with the EEOC or your state’s enforcement agency.  (File a complaint in California.) Or you could file a lawsuit in court.

• Tip: There are strict deadlines for filing with these agencies or in court. See number 8 below.

7.  Pay attention to filing deadlines.

• Federal Law (Applicable to all states)
  • There are strict deadlines when filing charges with government agencies, called “statutes of limitations.” The deadline for filing a charge with the EEOC alleging a violation of the Equal Pay Act is 2 years from the last discriminatory paycheck (or 3 years if the violation was willful). You may also choose to file a Title VII claim, for which the deadline is either 180 or 300 days from the date of the last discriminatory paycheck depending on which state you live in. Check the EEOC’s website to find your state’s deadline.
    • Remember: Making an internal complaint or report to your employer does not extend the deadline to file a complaint with the EEOC.

8.  Sue (file a lawsuit against) your employer for pay discrimination. Under the federal Equal Pay Act, you can go straight to court and you are not required to first file a charge with the EEOC. The deadline for filing a lawsuit is two years from the last discriminatory paycheck (or 3 years in the case of willful violations by the employer)

• Important Note: Before filing a lawsuit under Title VII, you must first file a charge of discrimination with a state or federal government agency, and get a “right to sue” from that agency.
• We strongly recommend speaking with an attorney before you take the step of filing a charge with a government agency or a lawsuit in court.  

• California
  • If you want to file a complaint with the Labor Commissioner, or file a lawsuit in court for violations of the California Fair Pay Act, you have 2 years from the “last violation” (the last discriminatory paycheck) to do so (or 3 years if the violation was willful). Every paycheck is considered a violation, so we recommend filing as soon as possible after learning that your coworker is making more than you for doing substantially similar work.

9.  Talk to a lawyer. If you need help understanding your rights and weighing your options, Equal Rights Advocates may be able to help. ERA offers free, confidential legal information, advice, and other assistance through our Legal Advice & Counseling service.

• Important note: Unfortunately, we are unable to accept new applications for our Free Legal Advice & Counseling program at this time.

If you have been retaliated against for asserting your rights under the California Fair Pay Act, the deadline to file a charge with the California Labor Commissioner is 6 months from the date of the retaliation and the deadline to file a lawsuit in court is one year after the retaliation.

Resources

• California Pay Equity Taskforce Resources