The California Equal Pay Act (CEPA) prohibits employers from paying unequal wages to employees of a different sex, race, or ethnicity if they do substantially similar work. The only lawful pay gaps are those that are based on non-discriminatory reasons, such as:
- a merit system;
- quality of production; and
- a seniority system.
The purpose of CEPA is to eliminate systemic sexism- and racism-based pay differences in the workforce. You can file a complaint with the Labor Commissioner or bring a lawsuit if your employer:
- is paying you less than a similar employee of a different race, sex, or ethnicity; or
- is retaliating against you for enforcing your rights under CEPA.
Through CEPA, you may be able to recover twice your back wages and get reinstated to your job if you were wrongly terminated or demoted.
In this article, our California employment law attorneys will address:
- 1. What is the California Equal Pay Act?
- 2. When are wage disparities lawful?
- 3. Does my wage history matter?
- 4. Can I ask about pay scales?
- 5. How do I bring an Equal Pay Act claim?
- 6. What is the statute of limitations for filing an Equal Pay claim with the Labor Commissioner?
- 7. What money can I get from filing a wage claim?
- 8. What if I am being retaliated against?
- 9. What is the California Fair Pay Act?
1. What is the California Equal Pay Act?
The California Equal Pay Act (CEPA) forbids public and private employers from paying you less than what they pay employees of:
- the opposite sex,
- a different race, or
- a different ethnicity
for substantially similar work.
The definition of “substantially similar work” is work that is mostly the same with regard to the following three factors:
- skill – education, training, experience, and ability;
- effort – necessary physical and mental labor; and
- responsibility – required accountability and duties
when performed under similar working conditions.
In short, CEPA prohibits sex-, race-, or ethnicity-based wage discrimination.1
2. When are wage disparities lawful?
California employers can pay employees unequal wages for doing substantially similar work for reasons that:
- have nothing to do with sex, race, or ethnicity;
- are job-related; and
- are consistent with a business necessity.
Legitimate reasons include:
- seniority; and
- other bona fide factors such as education, training, and experience.
Example: Tom has been working the same factory job for 20 years. Tina is hired for the same job, having no prior experience. Even though Tom and Tina are doing identical work, it is reasonable for Tom to receive higher wages than his new female colleague because Tom has two decades more experience.
In short, wage disparities between workers who do similar jobs are legal as long they are reasonably based on legitimate factors and not on conscious or unconscious bias, prejudice, or discrimination.2
3. Does my wage history matter?
California employers may not ask about your salary history. This prevents employers from using any low salaries you earned in the past to justify paying you a lower salary than they would otherwise.
Note that employers are permitted to seek salary histories that are publicly available through
Moreover, employers are allowed to ask you about your “salary expectations.”
You can also volunteer your prior salary information to a prospective employer. This makes sense if you received large salaries in the past since it may prompt the employer to make you a more generous offer than it would have otherwise.3
See our related article, Can California employers ask job applicants about salary history?
4. Can I ask about pay scales?
Once you complete an initial interview with an employer, the employer must provide you with a pay scale for that position if you reasonably request it.
Note that you can also ask about your co-workers’ wages. But your employer does not have to reveal that information.
In any case, employers may not retaliate against you for asking about pay scales or your colleagues’ wages.4
5. How do I bring an Equal Pay Act claim?
If your employer is paying you less due to your sex, race, or ethnicity, you may either:
- File a claim with the California Labor Commissioner; or
- File a regular wage and hour lawsuit in court.
Filing a wage claim is typically cheaper, easier, and shorter than bringing a lawsuit. All you have to do is complete and email the EPA-1 Form – which asks for basic information about your case – to [email protected].
If you bring a lawsuit, there is a three-step process:
- You have the initial burden of showing that you are getting paid less than a worker of a different sex, race, or ethnicity for substantially similar work.
- Then your employer has the burden to show that there is a lawful reason for paying you less (such as merit or seniority).
- If your employer meets this burden, then you have the burden to show that your employer’s reason is a pretext for discrimination. If meet this burden, you should win the lawsuit.5
In any case, it is recommended you consult with an employment lawyer to discuss your options.
(Note that if you were discriminated against based on another protected category – such as religion or age – you must file a claim with the DFEH – California’s Department of Fair Employment and Housing.)
6. What is the statute of limitations for filing an Equal Pay claim with the Labor Commissioner?
If your employer was willfully paying you less because of your sex, race, or ethnicity, you have three years to file a claim since the violation occurred. But if your employer’s actions were not willful, then you have two years to file.6
Each paycheck you receive that pays you less than you are entitled to counts as a “violation.”
Example: Tom purposely pays his employee Patty less than her colleagues because she is female. After five years of receiving paychecks that are too low, she finally files a claim with the Labor Commissioner. Due to the three-year statute of limitations, the Labor Commissioner can remedy only the last three years of underpaid wages.
Note that employers are required to maintain your wage record for at least three years. This way, all the evidence of your wages will be available should you bring a wage claim.7
(The statute of limitations for filing a traditional wage and hour lawsuit depends on the facts of your case. A labor law attorney can help you determine how soon you need to sue.)
7. What money can I get from filing a wage claim?
If the California Labor Commissioner investigates your case and concludes your employer indeed violated the Equal Pay Act, it will demand that your employer pay you double the amount of the money you should have been paid, plus interest.
If your employer refuses to pay you what you are owed, then the Labor Commissioner will file a lawsuit on your behalf.
(Note that if you bring a traditional wage and hour lawsuit instead of going through the Labor Commissioner, you can also ask the court to award you attorney’s fees and court costs.)8
8. What if I am being retaliated against?
If you are being retaliated against for exercising your rights under CEPA, you may either:
- file a retaliation claim with the California Labor Commissioner within one year of the retaliation; or
- file a civil lawsuit against your employer within one year of the retaliation.
Depending on the case, you may be able to recover back wages (plus interest) and be reinstated to your job.
Specifically, CEPA prohibits your employer from taking adverse actions against you for either:
- bringing a wage claim;
- revealing what you earn;
- asking about what your coworkers earn;
- talking about your coworkers’ wages;
- helping your coworkers bring wage claims; and/or
- otherwise enforcing CEPA.
Retaliation can take many forms, such as:
- reduction in hours; and/or
- reduction of pay.9
9. What is the California Fair Pay Act?
A new law effective January of 2016, the California Fair Pay Act (CFPA) revised CEPA in an effort to further reduce wage gaps based on sex, race, or ethnicity.
Perhaps the most significant change is that CFPA mandates equal pay for employees who do “substantially similar work” instead of “equal work“, which was the previous standard. This way, job titles – which can be misleading – do not factor into the pay disparity evaluation. All that matters is the actual job duties the employees carry out.10
Are you the victim of pay inequities? Contact our California law firm for legal advice and representation.
- California Labor Code 1197.5 LC. Other state and federal laws that prohibit pay discrimination are: 29 USC 206(d) for the federal Equal Pay Act of 1963; Title VII of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; Lilly Ledbetter Fair Pay Act of 2009; Fair Employment and Housing Act (FEHA).
- Same. California Labor Code section 432.3 LC. See also SB 1162 (2022).
- See, for example, Green v. Par Pools Inc. (2003) Cal.App.4th 620 (“California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination … based on a theory of disparate treatment.“). Instructions And Guide For Filing An Equal Pay Act Complaint, Labor Commissioner, State Of California, Department Of Industrial Relations – Division Of Labor Standards Enforcement. See also Complaint Process, Civil Rights Department, State of California.
- See note 1.
- Same. See also Sharif v. Mehusa, Inc. (Cal. App. 2d Dist. Oct. 14, 2015), 241 Cal. App. 4th 185.
- Same. See Retaliation Complaint Investigation Unit (RCI), State of California, Department of Industrial Relations. See the Retaliation Complaint Form.
- SB 358 (2016) (“This bill would revise that prohibition to eliminate the requirement that the wage differential be within the same establishment, and instead would prohibit an employer from paying any of its employees at wage rates less than those paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, as specified.”). See also: 2022 Report on Women’s Earnings in California State Civil Service Classifications; Shan Li, California women make 84 cents for every $1 men do, report says, Los Angeles Times (April 8, 2014).