House Bill 1646 – Proposed Washington State Equal Pay Act Amendment

The Washington State Legislature is debating House Bill 1646 that would amend the existing Washington State Equal Pay Act.  The Bill’s supporters claim the proposed legislation would address income disparities, employer discrimination and retaliation practices, and reflect the equal status of all workers in Washington State.  They believe the amendment is needed, because “there continues to be an unfair gap and inequality in wages among workers in Washington, especially women.  Women working full-time in Washington earn eighty cents for every dollar earned by a man working the same job.  The gap in earnings is even more disparate for women of color.”

The proposed legislation would make it a criminal misdemeanor for an employer to discriminate “in providing compensation based on gender between similarly employed individuals”.  

House Bill 1646 also provides for a civil cause of action if an employee receives less compensation “because of being discriminated against on account of the employee’s gender” or “if any employee receives less favorable employment opportunities because of being discriminated against on account of gender”.   A civil award for a violation of the proposed legislation would allow recovery of double the actual damages the employee is found to have suffered, or the amount of $5,000, whichever is greater; plus recovery of legal fees and costs.

The proposed Bill defines “less favorable employment opportunities” as assigning or directing the employee into a less favorable career track or position based on gender, with analysis factors including, but not limited to, an employer’s failure to use reasonable means to provide the employee with information about advancement in their career tracks or positions.

House Bill 1646 does offer some employer defenses.  An employer could defend against a claim by arguing a good faith, bona fide job-related factor caused the compensation or employment opportunities differential, such as education, training, or experience that is not based on employee gender.

House Bill 1646 would also forbid an employer from prohibiting an employee to disclose his or her wages.  It also makes unlawful an employer discharging, or in any other manner retaliating, against an employee for (a) discussing the employee’s wages or the wages of any other employee, (b) asking the employer about the employee's wages or lack of employment advancement, or (c) aiding another employee in the exercise his or her employment law rights.

While the proposed legislation is offered to correct wrongs, House Bill 1646’s application could open employers to even more litigation and potential civil liability.  An employer would have more of an affirmative obligation to coach employees on ways to exceed, and could be challenged on the effectiveness of its coaching efforts.  And, if an employee’s wage or job advancement expectations did not match the offered by the employer, the employee appears to have a cause of action under House Bill 1646, despite the employer having legitimate non-discriminatory justifications for its wage or advancement decisions.  The damages provisions of proposed House Bill 1646 are also serve enough that employers could elect to settle weak plaintiff claims than risk the exposure of a potential negative court ruling or jury decision.

Brian A. Walker helps businesses and individuals in employment, business, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC. You can reach Brian at bwalker@omwlaw.com or at (509) 663-1954.