The Senate Judiciary Committee advanced a pay equity bill Wednesday evening after four hours of testimony and debate over amendments. It’s the second iteration of the “Equal Pay for Equal Work Act” in as many Colorado legislative sessions. In addition to defining a narrow set of justifications for pay differentials between men and women, Senate Bill 85 integrates a prohibition on employers asking job applicants about their pay history.
“All things being equal, systematically women are paid less than men for the same work,” said bill sponsor Sen. Jessie Danielson. “We’re not talking about any difference in training, education, experience, merit [or] work production.”
Sen. Brittany Pettersen is a prime sponsor of the bill along with Danielson. In 2018, two House bills addressed pay equity and limiting employers’ ability to ask for salary history from applicants. Both bills died in the Senate Committee for State, Veterans and Military Affairs. Senate Bill 85 combines the two concepts.
White women in Colorado earn 86 cents for every dollar white men earn, but according to Senate Bill 85’s legislative declaration, that’s the best-case scenario. The number drops to 63.1 cents for African American women and 53.5 cents for Latina women.
“Although there are some federal protections in the workplace as far as pay disparities are concerned, they’ve been in place for 50 years and they haven’t done much to help women earn the same as men for the same work,” Danielson said in a Feb. 19 news conference.
Representatives of several organizations from Colorado’s legal community showed up to testify in support of the bill, including specialty bar associations and the Center for Legal Inclusiveness. Sarah Parady, the CWBA’s president-elect, addressed concerns raised by Sen. Julie Gonzales that Senate Bill 85 does not go far enough to protect women who may experience pay discrimination because of other protected characteristics in addition to sex, such as race or sexual orientation.
Gonzales pointed out the bill’s language prohibits discrimination based on sex either alone or in combination with another protected characteristic, but the remedies seem to be based only on sex discrimination. Parady assured her the language would not protect employers who would attempt to say a pay disparity for a woman of color, as an example, is not based on her sex by pointing to a white woman who is higher-paid.
“The idea is that you have to show there’s an employee of another sex who’s being paid differently,” Parady said. “But the employer can’t come back and say, this disparity is not based on sex because we have a white woman over here who’s being higher-paid as well.”
Gonzales ultimately voted to advance the bill. She told Law Week after the hearing she’s interested to hear more input from stakeholders about how expanding protections against intersectional pay discrimination can be addressed either in this bill or further legislation.
A key difference of Senate Bill 85 from last year’s pay equity bill narrowed the possible justifications for a wage differential. In addition to seniority, merit or having a system that measures earnings by “quantity or quality of production,” last session’s bill included a fourth bucket for “bona-fide” job-related reasons aside from sex. Senate Bill 85 eliminated that last category. But the committee approved an amendment that again expanded justifiable reasons for pay disparities, including geographical, educational, seniority and merit-based factors.
In addition to the bill’s prohibition on asking job applicants for salary history or using it to set a pay rate, another controversial hallmark from last year’s proposed measures has returned. It creates a private right for civil action in district court if employees choose to sue their employers.
Some business groups testified in opposition to the bill with concerns over components such as the creation of a private right of action and the absence of a provision for employers to seek attorney fees if they win. The committee kept both of those components, but did adopt several other amendments ranging from substantive changes to clarifications. One pushes the law’s implementation date back to Jan. 1, 2021. Another adds a clarification that the legislation doesn’t prevent a person from going through the Colorado Civil Rights Division if they choose.
Over the bill sponsors’ objections, the committee also adopted an amendment brought by Sen. Pete Lee to reduce the window from six to three years for which a person can get relief for pay discrimination. Lee said while he doesn’t have data on how long women tend to stay in one job, he suggested three years because it’s closer to the two-year timeframe allowed under federal law.
“I was trying to find something reasonable that could bring support from a broader cross-section of the Colorado community,” he said.
Sen. John Cooke, who voted against the bill, was doubtful of a provision requiring employers to take reasonable steps to make promotion opportunities known to all its employees. It wouldn’t make sense to require an open position in one department of a company to be made known to employees in an unrelated department, he said. But the committee ultimately did not adopt an amendment he proposed to strike that provision.
Lee expressed his support for the bill moments before the committee vote, echoing the sponsors and some testimony with the view that the gendered pay gap has been a detriment to society as a whole.
“Thanks for putting your shoulder to the wheel and pushing and pushing and pushing,” he told Danielson and Pettersen. “The finish line is in sight. We’ll get it there.”
— Julia Cardi