Getting Paid Less at Work Based on Gender or Race? You May Have a Case for Unequal Pay

Getting paid less than a coworker can be frustrating, but when the pay gap is tied to gender or race, it may be more than unfair. It may be illegal. While employers can sometimes justify differences in pay based on factors like experience, seniority, or job performance, equal pay laws are designed to protect employees from discrimination in compensation.

If you suspect you are being paid less because of your gender or race, you may have a case for unequal pay. Understanding how pay discrimination works, what evidence matters, and what steps to take next can help you protect your rights and determine whether legal action may be appropriate.

Your Equal Pay Rights in California

If you earn less than coworkers performing substantially similar work, and the pay gap correlates with your gender or race, you may be experiencing illegal pay discrimination.

California Equal Pay Act

California Labor Code Section 1197.5 requires equal pay for substantially similar work regardless of gender, race, or ethnicity.

Your employer cannot pay you less than employees of a different gender, race, or ethnicity who perform substantially similar work, unless the pay difference is based on:

• A seniority system
• A merit system
• A system that measures earnings by the quantity or quality of production
• A bona fide factor other than gender, race, or ethnicity (such as education, training, or experience)

Even if one of these factors applies, your employer must prove that the factor is applied reasonably, accounts for the entire wage differential, is job-related, and is consistent with business necessity.

Fair Employment and Housing Act (FEHA)

California’s Fair Employment and Housing Act prohibits employment discrimination based on race, color, national origin, ancestry, sex, gender, and gender identity.

Pay discrimination violates FEHA when your employer pays you less because of protected characteristics, applies different pay standards to different groups, or uses facially neutral policies that result in discriminatory pay disparities.

Federal Equal Pay Act and Title VII

The federal Equal Pay Act requires equal pay for equal work regardless of sex. Federal Title VII prohibits discrimination based on race, color, religion, sex, and national origin.

California’s law provides broader protections by covering race and ethnicity in addition to gender, applying to “substantially similar work” rather than identical work, and placing a stronger burden on employers to justify pay differences.

What is “Substantially Similar Work” Under California Law?

You do not need to perform identical work to prove pay discrimination. California law requires equal pay for “substantially similar work.”

Substantially similar work means jobs that require substantially similar:

• Skill (experience, ability, education, and training)
• Effort (mental or physical exertion)
• Responsibility (degree of accountability)

Your employer cannot justify pay differences simply because employees have different titles. If a “Senior Account Manager” and “Account Manager” perform substantially similar work, they should receive equal pay.

Common Pay Discrimination Patterns

Pay discrimination often follows recognizable patterns.

• Starting salary disparities: Your employer offers women or people of color lower starting salaries than white men for the same position. Small initial differences compound over time through percentage-based raises.
• Promotion and raise disparities: Your employer promotes or grants raises to white men more frequently or in larger amounts than women or people of color with similar performance and tenure.
• Bonus and commission disparities: Your employer awards discretionary bonuses, commissions, or incentive pay disproportionately to white men.
• Pay negotiation penalties: Your employer penalizes women or people of color for negotiating pay, calling them “aggressive” or “difficult,” while rewarding white men for the same behavior.
• Prior salary perpetuates discrimination: Your employer sets your pay based on your prior salary, perpetuating historical pay discrimination from previous employers.

California Labor Code Section 432.3 prohibits employers from asking about your salary history and from using prior salary as the sole justification for paying you less.

What to Do If You Suspect Pay Discrimination

If you believe you are paid less because of your gender or race, take action to protect your rights.

Document the Pay Disparity

Gather evidence, including:

• Information about coworkers’ pay rates (ask coworkers directly, as this is legally protected)
• Your pay stubs and employment agreement
• Job descriptions for your position and comparable positions
• Performance reviews for you and comparable coworkers
• Information about promotions and raises
• Communications about pay, bonuses, or compensation decisions

File a Complaint With the California Civil Rights Department

You can file a discrimination complaint with the California Civil Rights Department (CRD). The CRD investigates pay discrimination claims and can issue a right-to-sue notice allowing you to file a lawsuit.

You have three years from the discriminatory act to file under California law.

File a Charge With the EEOC

For federal claims under the Equal Pay Act or Title VII, file a charge with the Equal Employment Opportunity Commission. You must file within 300 days of the discriminatory act in California.

Consult a California Employment Attorney

An employment attorney can:

• Evaluate whether you have viable pay discrimination claims
• Conduct a pay equity analysis comparing your compensation to similarly situated employees
• Calculate damages, including back pay, interest, and penalties
• File complaints with administrative agencies and lawsuits on your behalf
• Represent you in negotiations and litigation

California law allows you to recover attorney fees if you prevail in pay discrimination cases.

Remedies for Pay Discrimination in California

If you prove pay discrimination, California law provides substantial remedies.

• Back pay: You can recover the difference between what you were paid and what you should have been paid, going back up to three years.
• Interest: You can recover interest on unpaid wages.
• Liquidated damages: Under the California Equal Pay Act, you can recover an additional equal amount in liquidated damages if your employer willfully violated the law.
• Emotional distress damages: You can recover compensation for emotional harm caused by the discrimination.
• Punitive damages: Under FEHA, if your employer acted with malice or recklessness, you can recover punitive damages.
• Attorney fees and costs: California Labor Code Section 1197.5 allows you to recover attorney fees and costs when you prevail.
• Injunctive relief: The court can order your employer to adjust your pay, change discriminatory policies, and conduct pay equity audits.

Protection From Retaliation

California law prohibits employers from retaliating against you for asserting your pay equity rights.

Your employer cannot:

• Fire or terminate you for complaining about pay discrimination
• Demote you or reduce your responsibilities
• Cut your pay or hours
• Give you negative performance reviews
• Create a hostile work environment
• Prohibit you from discussing wages with coworkers

If your employer retaliates, you can recover additional damages, including reinstatement, lost wages, emotional distress compensation, and punitive damages.

Paid Less Due to Gender or Race? Protect Your Rights

Equal pay for equal work is your legal right. When your employer violates that right, you have remedies available to recover what you are owed and stop ongoing discrimination.

At TONG LAW, we represent California employees in pay discrimination cases. We understand the California Equal Pay Act, FEHA, and federal pay discrimination laws. We conduct thorough pay equity analyses and hold employers accountable for discriminatory compensation practices.

If you believe you are being paid less because of your gender or race, contact TONG LAW today. We represent employees throughout Oakland, Sacramento, and across California.