Washington State first enacted its Equal Pay law prohibiting discrimination in employment compensation based on gender in 1943, a full 20 years before the federal Equal Pay Act of 1963.

However, as with its federal counterpart, the Washington law remained largely unused and somewhat ineffective. The disparity in pay between the genders persisted for decades for a variety of reasons. Women were more likely to take leaves of absence from their work due to child-rearing obligations. Employers also set offers for compensation based on what applicants requested or based on their salaries from prior employment. The systemic discrimination that arose out of lower salaries for women followed them from job to job.
 

Following the #MeToo movement in 2017 and developments in California law in 2015 ¹, Washington’s legislature modified the state’s Equal Pay and Opportunities Act (“EPOA”). Rather than requiring an employee or applicant to prove they were not being paid an “equal salary for equal work,” in June 2018, the standard changed to allow employees to recover if they were “similarly employed.”

This meant that even if an employee had a different job title, or worked a different facility for the same employer, if they were performing work that required “similar skill, effort, and responsibility” under “similar work conditions,” discrimination in pay was not allowed.

The 2018 modifications also established the right for employees to disclose and openly discuss their wages without fear of retaliation. The idea was to encourage employees to share information and allow women to understand what others in similar positions were being paid, which would further increase equity. Employees who prevailed under EPOA claims were entitled to increased damages, including actual damages or $5,000, whichever was greater, if they were not paid in an equal manner.

On March 30, 2022, Governor Jay Inslee signed another amendment to the EPOA. With this amendment, Washington implemented the strictest salary posting and disclosure requirements in the country.

As of January 1, 2023, any employer with “15 or more employees engaging in any business, industry, profession, or activity in Washington” was required to disclose a wage scale or salary range for any new job posting ². The modifications also provided that applicants who applied to a posting recruiting Washington-based employees were protected by the EPOA.

In recent months, several plaintiffs, almost all represented by a single plaintiff’s law firm, have filed purported class actions alleging that employers violated EPOA by failing to include wage scales or salaries in job postings since January 1, 2023. Many of these plaintiffs have filed multiple lawsuits against several different employers.

In each case, the plaintiff seeks $5,000 in damages from each purported application, plus attorneys’ fees and costs under the EPOA. The lawyers appear to be arguing that they have been “harmed” under a strict liability standard, regardless of whether the plaintiffs were even remotely qualified to hold the position and regardless of whether they had any intention of filling that position.

Employers are vigorously defending against these claims and intend to demonstrate that these claims do not meet the purpose or intent of the EPOA.

Resources:
1. https://www.lexology.com/library/detail.aspx?g=0616e197-800d-4777-b096-b43b23893f46

2. https://www.seyfarth.com/news-insights/washingtons-new-pay-transparency-law-the-department-of-labor-and-industries-administrative-policy-is-here.html
 

Author Bio

Helen McFarland is Labour and Employment Attorney, Seattle, at Seyfarth Shaw.

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