PRESIDENT’S COLUMN

BY MELISSA JOHNSON

Before news anchor Sandra Maas signed off the air in 2019 she said: “And though I won’t be delivering the news anymore from this anchor chair, I do hope to be making news. And making a difference for women in the workplace.” Less than two weeks later, she filed a lawsuit in the San Diego Superior Court, alleging, in part, that her former employer violated California’s Equal Pay Act by paying her male counterpart substantially more than her, and for whistleblower retaliation because her employer failed to renew her contract after she complained that the station paid her male counterpart more.

The jury awarded Ms. Maas $200,000 for her former employer’s violation of California’s Equal Pay Act, $1,295,000 in lost earnings, and $80,000 for emotional distress for retaliation by her former employer. And coincidently, Ms. Maas’ legal victory coincides with Women’s History Month and 2023’s Equal Pay Day.

The first Equal Pay Day observance in the United States was organized in 1996 by the National Committee on Pay Equity to raise awareness of the wage gap and its impact on women. Equal Pay Day marks the point when the average woman’s current earnings, combined with what she earned in the previous year, equals what the average man was paid last year. This year, Equal Pay Day will be recognized on Tuesday, March 14, 2023.

The gender pay gap is high, but the racial pay gap is even higher. Black, Hispanic, and Native women are more likely to be paid less than white women. And while Equal Pay Day this year is recognized in March, Black Women’s Equal Pay Day is September 21, 2023; Native Women’s Equal Pay Day is November 30, 2023; and Latina Equal Pay Day is December 8, 2023.

Consistent undervaluing of women’s work, and genderand race-based pay disparities, puts women (particularly women of color) at higher risk of economic insecurity and contributes to higher poverty rates.

California state legislators such as Hannah Beth Jackson, Lorena Gonzalez, and Ash Kalra have championed legislation to help close the pay gap through salary history bans, reporting requirements, and pay transparency, but this is not closing the gap quickly enough.

Salary History Ban: California law prohibits employers from relying on an employee’s prior pay to justify sex, race, or ethnicity based wage disparities. As such, employers may not ask applicants about their prior pay, because basing current pay on prior pay perpetuates the pay gap problem.

Pay Data Reporting: California requires employers to submit a pay data report, which requires employers with 100 or more U.S. employees and at least one employee in California to (1) submit an annual report of the number of employees within each establishment by race, ethnicity, and sex by job category and pay band during the prior year and (2) submit a pay data report for employees hired through labor contractors such as temporary staffing agencies and provide the median and mean hourly rate for each combination of race, ethnicity, and sex for each job category for both traditional employees and those hired through labor contractors.

Pay Disclosure Law: Pay transparency obligations are evolving rapidly. California employers with 15 or more employees must include pay scale or hourly wage ranges in job postings and provide the pay scale for the position to applicants upon request after an interview and to current employees upon request.

Pay Transparency: It has long been illegal for employers to prohibit an employee from disclosing his or her own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise rights under the Equal Pay Act.

I serve on the Executive Board of the California Employment Lawyer’s Association (CELA), the pre-eminent bar association for California plaintiffs employment attorneys, and I have been part of CELA’s Lobby Day team, traveling to Sacramento every year to meet with California legislators and staff to advocate for changes in the law that will provide working Californians with stronger legal protection. I am proud that I have personally lobbied the California legislature to pass laws designed to close the pay gap, specifically the Salary History Ban, Pay Data Reporting, and Pay Disclosure. And of these legislative bills, Pay Data Reporting was a very hard-fought battle. Until the Pay Data Reporting bill was finally signed by Governor Newsom, it had been passed in the legislature several times, but was not signed into law.

As you can probably tell, my practice area is plaintiffs employment law and my firm represents workers in matters related to discrimination, harassment, retaliation, and violations of California’s Labor Code. In my years of practice, too many times, I have heard stories similar to Sandra Maas’. For example, a newer female lawyer once reported to me that she complimented her employer for having so many women working in the firm. Much to her chagrin, her boss said something like, “Well, I can hire nearly three women for the price of one man.” But despite the inherent unfairness of being paid less than their male counterparts, women and people of color often do not complain because they would rather work for less money, than find themselves the subject of retaliation.

I deeply appreciate the immense bravery of Sandra Maas for standing up for herself, and all women and people of color who are paid unfair and unequal wages. And thank you to my colleague who represented Maas, Josh Gruenberg, and his team of excellent attorneys, Pamela Vallero and Joshua “JP” Pang for fighting such an excellent fight to close the pay gap.

Melissa Johnson is a plaintiff’s employment lawyer and a partner at Johnson Heeder LLP. Her practice focuses on discrimination, harassment, retaliation, executive compensation, and representation of public employees.