How many times have you heard that women – and women of color in particular – get paid less than men? Personally, I lost count years ago. Growing up, I held the naïve belief that closing the pay gap would be an easy fix. After watching a coalition of organizations, including the Colorado Women’s Bar Association, band together with state legislators to craft the Colorado Equal Pay for Equal Work Act (CEPEWA), it became clear that pay equity is no easy feat. Fortunately, the coalition was able to work with the bill sponsors to craft a strong statute requiring transparency on the part of employers and providing protections on behalf of their employees.
Some may wonder why CEPEWA was necessary when federal and state equal pay laws have been on the books for decades. The fact is that these laws have been largely ineffective given the employer’s ability to excuse pay disparities by simply arguing inequities were not in fact based on sex. As a result, women have continued to make about 82 cents for every dollar men earn, while Latinas earn around 55 cents and Black women earn around 63 cents to every white man’s dollar. The amount of income lost over a lifetime should be intolerable in our society. I am hopeful that CEPEWA’s holistic approach will pay dividends in narrowing the abysmal pay gap.
Unlike past legislation, CEPEWA prohibits paying different wages on the basis of sex with only six justifications to excuse pay disparities. Avoiding liability is not as simple as an employer pointing to one of the six reasons on the list. Instead, an employer must show that it reasonably relied on the reason given and must prove that the stated reason accounts for the entire wage differential. For example, if an employer argues that a difference in pay is a result of the employee’s geographic location, one of the six justifications, the entirety of the wage disparity must be attributed to geography. Further, the statute explicitly forbids an employer from relying on prior salary or wage rates as a justification for wage differentials.
Another important thing to know is that CEPEWA not only prohibits wage disparity based on sex, but it also prohibits wage disparity on the basis of sex plus another protected status. For example, an employer may not pay an indigenous female less than a white female for substantially similar work. For a long time now, employers could excuse paying women of color less than their colleagues by pointing to white women’s salaries. That is no longer the case under CEPEWA.
And when I say, “substantially similar work,” I am not just referring to job titles. If two jobs require similar skill, effort, and responsibilities, then they are “substantially similar,” and employers cannot rely on differences in job title to justify pay differentials.
Before touching on what employees can do to enforce their rights under CEPEWA, it is important to note that job applicants have rights too. Under this new law, employers may not ask applicants about their salary history or rely on salary history to set wages or salary. As an added buffer, the statute prohibits employers from discriminating or retaliating against applicants for failing to disclose their wage rate history. In the interest of evening the playing field, CEPEWA also encourages transparency from the get-go by requiring employers to list salary ranges and benefits on job postings. The point is to ensure that applicants are aware of their salary potential and to prevent employers from relying on past salary or subjective factors in determining wages.
Now, let’s say a potential client who already has a job approaches you with the concern that her pay rate is less than her male counterparts. Initially, practitioners should be aware that CEPEWA empowers employees to have open discussions in the workplace about wage rates and protects employees who chose to have such conversations with one another. CEPEWA protects employees of all genders against retaliation, coercion, or other intimidation for discussing wages. While talking about salary is historically taboo, conversations with colleagues is the first step to discovering pay discrepancies, and employees should be encouraged to have them with those who are comfortable.
Second, those who discover they are being paid disparately based on sex or sex plus another protected status can file a civil action in court. To go down this road, a plaintiff must file her case within two years from the last disparate payment, or the last paycheck if she is no longer working for that company. A successful plaintiff can recover backpay for up to three years, along with reasonable attorneys’ fees and costs. In some cases, she may also be entitled to liquidated damages. So, if she was underpaid $10,000 every year of your employment, she may be able to bring suit for $30,000 in backpay (three years of back pay), another $30,000 in liquidated damages, plus attorneys’ fees and costs. Reinstatement, promotion, and an increase in pay are also available remedies.
While the statute also authorizes the Colorado Department of Labor and Employment (CDLE) to create a process to accept and mediate complaints of pay disparity, it has not yet done so. Advocates in support of CEPEWA are hopeful that will change in 2021.
What the CDLE has done so far is to promulgate the Equal Pay Transparency Rules, which address CEPEWA’s transparency requirements. CEPEWA’s transparency provisions require employers to post and announce opportunities for promotions and to include pay range and benefit descriptions in job postings. The purpose is to provide all employees with the same information to even the playing field and narrow the gender pay gap. Anyone who has suffered from violations of CEPEWA’s transparency provisions – or even just witnessed them – can file a complaint with the CDLE. CDLE can then investigate the complaint, and if a violation is found, CDLE can direct the company to comply with the law while also imposing fines ranging from $500 to $10,000 per violation.
CEPEWA is the result of many years of research and advocacy to achieve pay equity. Given the systemic nature of the gender pay gap, particularly with respect to women of color, change demands more than just prohibiting intentional pay discrimination. As the CEPEWA recognizes, the path to narrowing the pay gap will come only through a combination of wage transparency measures, anti-retaliation protections, and sincere efforts to achieve equal pay. CEPEWA serves as a huge victory for the State of Colorado, and it is now up to us to ensure pay equity is achieved on behalf of Colorado’s women and families.
Ellen K. Giarratana is an attorney at Rathod Mohamedbhai LLC whose practice emphasizes advocating on behalf of individuals suffering from abuses of their civil rights, including minors suffering abuses in school and employees facing discrimination in the workplace. Prior to joining Rathod Mohamedbhai, Ellen clerked at the Colorado Court of Appeals for the Honorable Stephanie E. Dunn.She then moved to Jackson, Mississippi to work at the Southern Poverty Law Center, where she advocated for policy change at the state capitol and represented individuals convicted under Mississippi’s harsh three strikes law seeking parole eligibility, as well as geriatric prisoners pursuing conditional release. Since returning to Denver, she has become active on CWBA’s public policy committee and the equal pay subcommittee. She values mentorship, diversity, and civility in the law and, to that end, she volunteers as a mentor for Law School Yes We Can and is an associate barrister in Rhone Brackett and Justice Sonia Sotomayor Inns of Court.