California Equal Pay Law Mainly Boosts Pay of Lawyers

Governor signs bill that makes it easier to file discrimination grievance.


I have no idea what other columnists at my newspaper earn and have absolutely no interest in that information, even if someone suggested that pudgy, older bald guys with big noses and Philadelphia accents might get short shrift. If I don't like the deal, I'm free to go elsewhere. If the newspaper doesn't like my work, it can hire someone else.

Human-resource managers call it the "at will" hire concept. Really, it's the "free society" concept. Increasingly, that idea is giving way to the "hire a lawyer" or "file a grievance" concepts. The new California Fair Pay Act signed by Gov. Jerry Brown (D) this week is one of the toughest gender-equality measures in the country, but critics say it turns everyone's salary into a potential dispute.

I understand how tough it can be to just find another job, but pay levels are the result of myriad factors ranging from experience, negotiating skills, timing and more. The new law allows employers to use bona fide differences to justify different wage rates, but it is clear the new measure will subject pay differences to endless litigation.

California has long required employers to pay men and women the same wage for the same work. SB 358, however, expands the standard from "same" to "substantially similar."

It's problematic enough to measure the same work. Is Reporter A with 15 years of experience the same as Reporter B with 10 years? What if B spent those years at a big-city newspaper and A spent it at a backwater? But A was the star at Backwater Times and B was a seat warmer. I know. The law is about current job requirements, not past experience. But I've done enough hiring to know jobs expand or shrink with the talents of those who perform them—and not just for salaried jobs. Companies often bid more for talent—and less-experienced workers get a foot in the door by accepting lower pay.

The new standard puts everything up for debate. It forbids differing wage rates for people of the opposite sex "for substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions," according to the Senate bill analysis. It leaves exceptions if the wage differential is from seniority systems, merit systems and systems where earnings are based on "quantity or quality of production." In other words, there are enough "outs" to minimize the disruptions.

We all want fairness and equality, but people aren't widgets stamped out equally on an assembly line. My wife works and I have three daughters. My mom tells stories about being the only woman in a male-dominated sales environment. I get it. But is the best way to assure fair pay to subject everything to a lawsuit or hearing in front of administrative number-crunchers?

The law reads as if it were written by trial lawyers. "Substantially similar" is vague language that can only be resolved in court. Existing law bars an employer from banning employees from disclosing their salaries to others. This new law forbids employers from barring their workers from "discussing the wages of others, or inquiring about another employee's wages" if the goal is to enforce the rights in the bill. It's an open invitation for disgruntled employees to try to ferret out information about their co-workers' earnings, complain about discrepancies and start filing grievances. Don't try laying off a worker with a grievance. That opens the door to expanded lawsuits that allege retaliation. Do consider hiring more lawyers.

"Sixty-six years after passage of the California Equal Pay Act, many women still earn less money than men doing the same or similar work," said Gov. Jerry Brown. The law's backers say that women on average earn 77 cents on the dollar, which seems pretty unfair. But others argue the gap shrinks once crucial factors (job type, time on the job, education, age) are included in the formula.

There wasn't much debate on that valid issue, or on the costs imposed on businesses. That's because Republican leaders eagerly signed on to the bill and only two GOP legislators voted no. The California Chamber of Commerce got some concessions and then backed it. If pro-business voices don't care, maybe the rest of us shouldn't, either. But I still don't think hiring a lawyer is the best solution if your pay level seems unfair.

NEXT: Hard Times Ahead for Advocates of Peace and Free Markets

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  1. That’s because Republican leaders eagerly signed on to the bill and only two GOP legislators voted no. The California Chamber of Commerce got some concessions and then backed it.

    My guess is because no matter how bad the bill actually is, opposing it is going to be seen as hating women.

    1. Opposing this bill means you want war with Iran.

    2. Not a smart move. This approval simply gives validity to the underlying claim that women are fundamentally and wrongfully disadvantaged.

      Note that equality of opportunity is made dependent on equality of outcome. As long as there are statistical disparities, wrongful discrimination is assumed. In this, legislators engage in the social engineering of a planned economy and planned private life. They set the numerical outcome and distribution, replete with substantial but unsubstantiated assumptions about human nature. Consult Hayek, and the corresponding dystopian literature.

  2. Here’s a sample of a discrimination filing at my own company.

    An employee recommended her own friends for a position. When none of them got the position, she filed a discrimination lawsuit, saying she was discriminated against.

    That ladies and gentlemen, is an example of where this can go.

  3. So . . . lawyers and politicians (mostly lawyers with legal staff) win. Everyone else? Maybe.
    What’s new?

  4. The root of this whole thing is the insistance by doctrinaire Feminists, that women and men are the same. It’s bullshit. It has always been bullshit, but there was a time, not so very long ago, when there was a widespread acceptance of the idea that women were completely different in a lot of ways that just weren’t so, and this rose up as a counter-force. Now it is part of the basic narrative, and does a lot of damage that Good People aren’t supposed to notice.


  5. California Equal Pay Law Mainly Boosts Pay of Lawyers


  6. Even sophisticated women choose to earn less:

    “In 2011, 22% of male physicians and 44% of female physicians worked less than full time, up from 7% of men and 29% of women from Cejka’s 2005 survey.”


    “The Doctrinaire Institute for Women’s Policy Research: A Comprehensive Look at Gender Equality” http://www.malemattersusa.wordpress.c…..-research/


    Women’s job choices ? and men’s ? tend to be influenced by “what the market will bear” principle. Since women in huge numbers are (still) either supported by a man (fully or partly) or anticipate being supported, they as a group are able to bear lower pay than those in the group expected to do most or all of the spouse supporting. Many women, married women in particular, might be comparable to teens who live with, and are supported by, their parents and who are able to accept a job that pays little, while their parents must earn enough to support both the teens and themselves. Women as a supported group thus have been able to bear the low-paying jobs that men as supporters generally have been unable to bear. They often can regard their husband as an “employer” who pays them to work at home tending the hearth and raising the children. So they often need not necessarily seek a higher-paying real employer.

    1. Why do you hate women?

      1. Misanthrope?

  7. “Sixty-six years after passage of the California Equal Pay Act, many women still earn less money than men doing the same or similar work,” said Gov. Jerry Brown.

    One.Moar.Law. until the perceived problem is fixed.

    1. After 66 years men still stubbornly refuse to take up an equal share in family life and get pregnant.

    2. “way too many years after passage of the law against murder, and there’s still murder. therefore, we pass this new law….”

      you can do that nonsense for anything.

  8. “We all want fairness and equality”

    Fairness yes equality no. They are usually mutually exclusive.

    1. The problem with equality is determining what’s “equal”, and who has the authority to do so. Proclaiming “equal opportunity” suffers from the same problem. Compensation for genetic “inequality”, inopprtune preferences? – Comparable worth doesn’t work, due to incommensurability (no discernible iustum pretium).

      Further, antidiscrimination law doesn’t even look very equal. You get to discriminate against someone’s voice (music), musical interest (unemployed classic musicians!), physical ability (sports), but not against their lack of female curves (or in favor of female beauty, respectively). Well, there are some exceptions, such as higher pay for female models, compared to male models. By the way, what’s the black-white pay gap?

      1. There are some good points there but to me it is important to point out how fairness and equality are mutually exclusive in most cases especially as it pertains to pay. Any 2 employees performing the same job are going to have different levels of performance. Some people produce a larger quantity of higher quality work than others. It is simply unfair to pay them at the same level.

        I kind of wonder if perhaps we can get some of the Dodgers pitchers to sue in California.

        After all Zack Grienke and Mat Latos had the same job. They were both major league starting pitchers. Clearly according to the official handbook of proggie derp they should make the exact same money.


        1. Looks like the pitchers are unequal. Would it be fair to pay them different sums? If so, no mutual exclusion.

          The point of departure seems to be determining equality, the trait/criterion of equality. (Called tertium comparationis.) Is it about the kind of job, or the quality of performance more specifically? Note that the level of abstraction matters a lot, in law. Half-hearted differentiation is arbitrary, compared to full differentiation or complete absence of differentiation (same pay for everyone, no matter what = unconditional basic income). So it should be about performance specifically, rather than kind of job.

  9. Take a look at EEOC v Sears, 839 F.2d 302 (7th Circuit, 1988): disparate impact (women underrepresented in commissions [!] sales force), legal threat, and false assumptions. (It’s worth contemplating what “inherent” dynamic antidiscrimination law has. Consider that the Civil Rights Act was never designed to allow affirmative action. See Glazer, Affirmative Discrimination, Harvard UP, 1987. Titles VII and IX are interesting.)

    As for the adjusted wage gap, I think it doesn’t even include non-monetary benefits (presumably women get more of these) or negotiation (men are better at it), and relocation. Then ends up at 5%. Pretty much the same in countries that obligate employers to pretend that part time work is to be paid the same as full-time work, per hour (e.g. Germany). Not to mention that the health care and pension systems benefit women, who pay the same rates but get more out of it. For the whole thing, check out Epstein, Forbidden Grounds, Harvard UP, 1992. K. R. Browne’s Biology at Work, Rutgers UP, 2002 is worth reading.

    1. *note that said “pretending” includes having to pay that

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