Search form

Rethinking Pay Equity: Who is ‘Comparable’ for Pay Equity Purposes?

By Christopher T. Patrick
  • March 21, 2019

This is the second article in our four-part series titled “Rethinking Pay Equity,” designed to provide practical guidance to help employers understand and address the many new rules, regulations, and best practices around pay equity in preparation for Equal Pay Day 2019. This article focuses on identifying “who” will be compared for purposes of pay equity under federal and state fair pay laws. The four-part series will culminate in a complimentary webinar on April 2, Equal Pay Day 2019, by the Co-Chairs of the Jackson Lewis Pay Equity Resource Group, Joy Chin and Stephanie Lewis.

New State and Local Fair Pay Laws

The persistent gender “pay gap” has led many state and local governments to enact new fair pay laws that are broader in certain respects than federal pay discrimination laws. California (2016), Massachusetts (2016), Maryland (2016), Oregon (2017), Puerto Rico (2017), Washington (2018), New Jersey (2018), and Illinois (2019), as well as many others throughout the country, have adopted their own fair pay laws.

While these state and local fair pay laws vary, they all generally expand the pool of employees who can be compared to determine if pay is equitable. Under the federal Equal Pay Act of 1963, 29 U.S.C. §206, an employer must pay men and women the same when they are performing equal or “substantially equal” work. To bring a claim, an employee would have to demonstrate that he or she performs virtually the same work as a comparator of the opposite sex and receives less pay. Protections under Title VII of the Civil Rights Act are similarly restricted to those who are “similarly situated.” See County of Wash. v. Gunther, 452 U.S. 161, 168 (1981). The Equal Pay Act also restricts comparison to those in the “same establishment.”

Before 2016, nearly all states had their own “equal pay acts” that mirrored the equal pay for equal work language of the Equal Pay Act. Since 2016, however, states have sought to broaden the pool of comparators to those performing “substantially similar work” or “comparable” work. For example:

  • California, Illinois, and New Jersey prohibit disparities among employees performing “substantially similar work” (the same standard is in bills pending in Colorado and Hawaii);
  • Massachusetts prohibits disparities among employees performing “comparable” work;
  • Oregon and Maryland prohibit disparities among employees performing “work of a comparable character”; and
  • Washington prohibits pay disparities among employees who are “similarly employed.”

In addition, many of the state laws do not restrict comparison to the same establishment or geographic location. For example, California’s fair pay law allows comparison to employees in other locations or establishments.

What’s an Employer to Do?

The continued focus on pay equity by state and local governments requires employers to review their pay practices and consider a proactive, attorney-client privileged pay audit to identify and address unexplained pay disparities.

The privileged pay audit should be constructed so that employee groupings (comparator pools) match the breadth of potential comparators under the specific state and local laws that apply to the workforce. Some practical tips for employers in considering a privileged pay audit include:

  • Expand the pay groupings beyond job title and compare jobs that share similar functions. New state laws are breaking away from the idea that relatively minor job related distinctions command different pay. Employers will need to broaden their ideas of comparable tasks and roles by considering the reality of the job functions.
  • Evaluate the pay groupings multiple ways to see where potential issues may exist, and then focus on ensuring that those issues are defensible in the relevant jurisdiction.
  • Audit job descriptions and the actual job duties of employees — skills, efforts, and responsibilities — to ensure that any privileged pay analyses will compare the “right” employees and identify actual legal risk for the jurisdiction.

Please contact the Jackson Lewis Pay Equity Resource Group with any questions about privileged pay audits, pay policies, or pay equity training.


Rethinking Pay Equity: Overcoming the Impact of Prior Salary Information

©2019 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at

See AllRelated Articles You May Like

September 13, 2019

California Supreme Court Rejects Claim for Unpaid Wages under PAGA

September 13, 2019

Putting an end to employees’ backdoor attempts to recover unpaid wages in Private Attorneys General Act-only actions under California Labor Code Section 558, the California Supreme Court has ruled against allowing such claims. ZB, N.A., et al. v. Superior Court, No. S246711 (Sept. 12, 2019). This is surprising, as the Court provided... Read More

September 13, 2019

California Worker Misclassification Bill Closer to Enactment

September 13, 2019

The California Assembly has passed a bill that would require workers to be classified as employees if the employer exerts control over how the workers perform their tasks or if their work is part of the employer’s regular business. Assembly Bill 5 (AB 5) passed by a vote of 61-16 in the Assembly. Governor Gavin Newsom has stated his... Read More

September 9, 2019

Non-Agricultural Employers May Use Workweek Averaging to Satisfy State Minimum Wage Obligations in Washington

September 9, 2019

The Washington Supreme Court has confirmed that non-agricultural employers may use a workweek averaging methodology to satisfy the Washington Minimum Wage Act. Sampson et al. v. Knight Transportation Inc. et al., No. 96264-2 (Sept. 5, 2019). In other words, non-agricultural employers can satisfy their state minimum wage... Read More

Related Practices