Compensation Issues |
June 06, 2017

Race-Based Wage Discrimination

When race is the explanation for differences in pay, a San Francisco employment lawyer can help employees obtain compensation

employment attorney san francisco discuss race-based wage discrimination

All employees want to be paid fairly. One aspect of fair pay is the principle that race should not influence compensation. Federal and California laws prohibit discrimination in compensation on the basis of race, color, national origin, or ancestry, as well as on the basis of sex and other grounds. Discrimination occurs when white workers are paid more than other workers because of their race.

When employees of color are paid less than white employees because of their race, a San Francisco employment discrimination lawyer can help the employee who has been denied fair pay obtain compensation.

Race-Based Disparities in Pay

The pay gap between employees of color and white employees who do the same or similar work is a persistent issue. According to the Pew Research Center, black workers earn 75% as much as white workers, while Hispanic workers earn 69% of the wages paid to white workers. That compensation gap has held steady for decades.

Not all differences in pay are racially discriminatory. Differences in education, skills, and experience may account for pay differences in individual cases. But studies have found that about half of the wage gap remains after controlling for education and experience.

Surveys report that 21% of blacks and 16% of Hispanics feel that they were treated unfairly in pay or promotion decisions during the previous year because of their race or ethnicity. Only 4% of white employees felt that way. Perceptions are not proof of discrimination, but they do suggest that race is a factor that some employers improperly consider when making employment decisions.

Investigating Disparate Pay

Proof of a discriminatory pay claim usually starts by proving that an employer is paying white employees more than people of color for the same work. Some employers try to avoid liability by keeping pay rates a secret. They may tell employees that revealing their pay to another employee is a violation of a work rule.

For the most part, employees have a right to ask about or disclose pay information. However, when an employee’s job provides access to payroll data, it may be improper for the employee to disclose wages other than his or her own rate of pay.

California’s recently-enacted Fair Pay Act includes a wage transparency provision. The law prohibits employers from retaliating against employees who inquire about another employee’s pay or who discuss their own pay.

When an employer has a policy that prohibits discussion of pay, an employee may want to seek legal advice from a San Francisco employment lawyer before asking another employee to reveal the wages he or she earns. An employee who has been disciplined or fired for inquiring about pay might also benefit from legal advice.

Proving Wage Discrimination

The fact that a white employee earns more than a person of color who does the same job may raise a suspicion of race discrimination, but it is important to rule out legitimate explanations for the pay difference. Higher pay is justified to reward productivity, effort, seniority, special skills, or other race-neutral attributes valued by an employer.

The fact that a justification for higher pay is not business-related does not necessarily prove discrimination. If an employer pays a white employee more than a nonwhite employee because the white employee is the CEO’s son-in-law, the disparate pay may not be racially discriminatory.

Moreover, the mere fact that an employer offers an explanation for the pay disparity does not necessarily mean that that explanation is true. For example, the claim that a white employee is more productive than a person of color, and therefore deserving of higher pay, might be refuted by evidence that the person of color is actually more productive than the white employee. Sales figures and performance reviews are examples of evidence that might refute the claim that a white employee is doing the job more capably than a person of color.

Wage discrimination is often proven by showing that the employer’s stated reason for paying white employees more than people of color is false. That proof allows a judge or jury to infer that the employer is concealing the true motivation — race discrimination — for the differential pay. The ability to “indirect” proof of discrimination is important because employers rarely admit that they are paying white employees more because they are white.

Getting Help

Employees who suspect that they are being paid less than other employees because of their race can get legal advice by contacting the San Francisco employment discrimination lawyers at Minnis & Smallets. With years of experience representing employees in discrimination cases, Minnis & Smallets is able to evaluate discrimination claims and advise clients about their likelihood of obtaining a remedy for wage discrimination. To schedule a free initial consultation, call 1-415-551-0885 or ask about our availability by submitting our online contact form.