What is it?

As of October 2019, ERA’s Advice & Counseling program is temporarily not accepting new employment-related inquiries. For more information about this temporary freeze, click here.

Please note: The purpose of this Know Your Rights Guide is to help you understand your rights and options if you are experiencing sexual harassment at work. This guide is not legal advice. Laws and legal rules frequently change and can be interpreted in different ways, so Equal Rights Advocates cannot guarantee that all of the information in this Guide is accurate as it applies to your situation.

 

Under the law, employees of the opposite sex — and in some states, of a different race or ethnicity — must be paid equally if they are doing “substantially similar” (very similar) work under similar circumstances, unless the employer can show a valid defense.

Some other examples of potentially illegal pay discrimination include but are not limited to:

  • Your employer gives raises based on a points system, and women are regularly docked more points than men for making the same mistakes
  • Your employer gives bonuses to the “heads of households,” and assumes that only male employees are breadwinners, thus paying men higher wages
  • The managers making pay and raise decisions are mostly men, the criteria they use is unfairly skewed toward men, and there is evidence that women are being paid less than men in comparable positions with similar experience and qualifications.
It felt very empowering... to have an agency to go to that would actually stand by you. Terry Becker, former ERA client

Read Terry’s Story

What are the laws?

Federal law (applies in all states)

1.  Title VII of the Civil Rights Act of 1964.  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.  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 are my rights?

In every state, you have the right to:

1.  Complain to your employer about pay discrimination against yourself or coworkers. 

2.  File charges with a government agency, such as the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal anti-discrimination laws, or your state enforcement agency — for example, the California Department of Fair Employment and Housing (DFEH).

  • Note: There are strict deadlines when filing charges with government agencies, called “statutes of limitations.” The deadline for filing a charge about a violation of the Equal Pay Act with the EEOC is 2 years from the last discriminatory paycheck (or 3 years if the violation was willful (on purpose)). If you also choose to file a Title VII claim, the deadline is either 180 or 300 days from the date of the last discriminatory paycheck depending on which state you live in.
  • In California, you have 2 years (or 3 years in in the case of willful violations) to file a charge under the California Fair Pay Act with the Labor Commissioner (Department of Labor Standards Enforcement).
  • See the “What can I do?” section below for more information on filing claims. 

3.  Sue (file a lawsuit against) your employer for pay discrimination. Under the federal Equal Pay Act and the California Fair Pay Act, you can go straight to court. You are not required to first file a charge with a government agency.

  • Under both the federal Equal Pay Act and the CA Fair Pay Act, the deadline for filing a lawsuit is two years from the day you received the last discriminatory paycheck (or 3 years in the case of willful violations by the employer).

4.  Testify or otherwise participate in an investigation by the EEOC or a state agency of your own or a coworker’s pay discrimination claim.

5.  In California, you also have the right to receive a copy of your personnel file. You can request to see and review your personnel file, which could contain performance evaluations, information relating to how your pay was decided, and other useful information that could be used as evidence. Your HR department or union representative should have information about how to get your personnel file for review or you can simply ask your employer.

6.  Be free from retaliation. It is illegal for your employer to retaliate against (punish) you for exercising any of your rights listed above. Retaliation includes being fired, demoted, cutting your pay or your hours, changing your shifts or duties, asking you to take time off without pay, or anything else that has a negative effect on you. Retaliation can also be subtle and get worse over time: such as no longer being invited to meetings or being left off communications you were formerly on.

What can I do?

If you believe you are being paid less than a coworker of the opposite sex (or in California, of a different 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, [date], 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 9 below.

7.  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 Advice & Counseling service.

  • Important Note: As of October 2019, our Advice & Counseling program is temporarily unable to accept new inquiries related to issues at work. Learn more.

8.  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.

9.  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.

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.

What could happen?

If you file a claim under the Fair Pay Act and are successful, one or more of the following could happen. Everyone’s case is different – these are just common examples.

1.  You could receive “back pay”— the money that you would have earned if your employer had not been illegally discriminating against you.

2.  If you were fired or demoted because you asked about pay or filed a complaint, you could potentially get your job back.

3.  You might be able to make your employer change their policies or practices to ensure all workers are paid fairly as required under the law, and to help make sure others do not suffer the same harm you went through.

4.  You might receive payment for emotional or physical damages that resulted from the discrimination or the process of trying to get fair pay.

Legal Advice & Resources / Consejos y Recursos legales

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Learn what your rights are so you can navigate your situation and make the best decision for you.

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Due to our current caseload, we are unfortunately not able to offer appointments for employment-related issues right now. Please see our Know Your Rights guides for information about your rights at work.

For issues at school, temporarily we can only help with:
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Note: Due to limited capacity, our staff can currently only assist new clients with select issues at school or related to education. We hope to re-open our employment-related intakes soon.

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Para problemas a su escuela, temporalmente, solo podemos ayudar con:
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