Columns

New Oregon Equal Pay Law Shifts Burden of Proof from Employee to Employer

Oregon Gov. Kate Brown signs an executive order in Salem, Ore., on April 27, 2017. (AP Photo/Kristena Hansen)

Republican Sen. Tim Knopp said he was sure that there wasn’t a single employer in Oregon who intentionally paid women less money than equally qualified men for the same job.

As a matter of fact, it has been illegal for some time to base pay on gender, race, color, etc. in Oregon.

However, Knopp still voted for the Oregon Equal Pay Act of 2017 that shifts the burden of proof from the aggrieved employee to the accused employer.

“This bill is for our mothers, our wives, our daughters, our granddaughters, our aunts, our nieces and our friends,” Knopp said on the Senate floor. “I want to dedicate this bill to the next generation of women that will earn more for their entire working career because of our efforts here today.”

Businesses in Oregon are going to have to ensure they are paying men and women — assuming all things are equal, like experience, qualifications, etc. — equal pay. The legislation approved by the Senate and House, and on its way to Gov. Kate Brown’s desk, includes exceptions for merit, seniority, quantity or quality of production, education, training, experience, workplace locations and travel.

Other than that, as soon as Gov. Brown puts pen to paper, it will be illegal to pay less based on race, gender, color, religion, national origin, sexual orientation, marital status, veteran status, disability or age.

“I applaud the Legislature’s bipartisan efforts to pass the Pay Equity Bill and I look forward to signing House Bill 2005 into law,” Brown said in a statement. “While workforce discrimination has long been illegal, pay inequity persists. House Bill 2005 makes great strides towards a more equitable and prosperous Oregon.”

Democratic Sen. Kathleen Taylor admitted during Senate debate that everything listed in the legislation was already in place in Oregon law.

“However, our current legal system is not working, and we know far too many individuals are being paid less for doing the same work,” Taylor said.

An ECONorthwest analysis of 2014 Census Bureau data showed that while Knopp may have never met anyone intentionally paying a woman less than a man who had the same qualifications, Taylor’s correct. It is happening in Oregon.

The analysis showed that not only are Oregon women earning between 53 and 83 cents (depending on race or ethnicity) for every dollar men in Oregon make, but the state’s gender wealth gap is among the largest in the nation.

In a joint press statement, Kate Newell of Family Forward Oregon and Trish Garner of AAUW praised the legislation as being “a critical part of ending pay discrimination for women, people of color, workers with a disability, LBGTQ workers and all other protected classes.”

The business group Associated Oregon Industries was an early opponent of HB 2005. In a February press statement, AOI complained the biggest problem with HB 2005 was that it would shift the burden of proof from the employee to the employer.

“Protected employees would have to show only that they did similar work as co-workers of another race, color, religion, sex, sexual orientation, national origin, marital status or age, and were paid less,” the AOI statement read. “Employers would then have the burden of convincing courts that any differences in pay were justified by a set of vague criteria that could be difficult to quantify.”

The result, AOI warned, would be increased exposure to lawsuits for businesses in Oregon, coupled with higher penalties.

But four days before the Senate approved the legislation, AOI came out in support of HB 2005, because of several amendments the organization felt made it a more business-friendly piece of legislation.

Chief among the changes Associated Oregon Industries applauded were amendments that clarified justifiable reasons for different pay for the same job and offered employers a route to block compensatory and punitive damages.

Another amendment that delayed implementation of the new law until Jan. 1, 2019, gave Oregon businesses a little breathing room to implement or change their pay programs to fit the legislation.

Thanks to the amendments, AOI and more than half-a-dozen other Oregon business groups came on board and supported HB 2005.

The legislation not only won bipartisan support in the House and Senate, but the vote was also unanimous for the legislation.

Republican Rep. Jodi Hack said the legislation was long overdue.

“I, as well as many other people, have experienced pay inequity,” Hack said. “But it’s not just about the pay. It’s about recognizing people for their hard work and for their efforts, and for what they bring to the table.”

Hack also said the bill would give employers “the opportunity to step forward and to do what is right.”