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 sponsors 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 news conference Feb. 19.
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 besides sex. Senate Bill 85 eliminated that last category. But the committee approved an amendment that 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 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. But several also said they would move to a neutral or supportive position on the bill if it were amended to address those types of concerns.
The committee did adopt several 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 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.
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.”
Watch for more details on Senate Bill 85’s committee hearing in the February 25 edition of Law Week Colorado.