Jerry Brown Enshrines Equal Pay–for Unequal Work

In Tuesday night’s Democratic debate, former Secretary of State Hillary Clinton pushed forward her preferred narrative about female victimhood in the United States: women aren’t paid equally for equal work.

“I believe in equal pay for equal work for women, but I also believe it’s about time we had paid family leave for American families and join the rest of the world,” Hillary explained. Socialist Vermont Senator Bernie Sanders also announced his support for “pay equity for women workers.”

The myth that women are paid less than men for the same work has been debunked over and over and over again. But it still wins female votes to proclaim that women are the downtrodden of the earth, even though a higher percentage of women now have bachelor’s degrees than men in the United States.

More importantly, the left never believed in equal pay for equal work. They always believed in higher pay for less work for women as a way to pander to the female vote. The latest incarnation of that philosophy comes in the form of California’s amendment to the Equal Pay Act, signed into law by Governor Jerry Brown last week.

California’s labor code has mandated “equal pay for equal work” since 1949. New additions to the law go significantly further. SB 358 mandates that women receive equal pay for “substantially similar work, when viewed as a composite of skill, effort, and responsibility.”

That means that in order to sue an employer for wage discrimination, a woman need not show that a person in the same position with the same job description or in the same department is receiving better pay for no apparent reason other than sex. Now, a woman can point to jobs with different titles in different departments for purposes of comparison.

The burden has now shifted to employers to prove that they are paying a man more thanks to one of a number of factors:

Seniority. Time on the job is considered a sufficient excuse for a salary differential, although a pure seniority system exists at few businesses.

Merit. It will be difficult for employers to prove merit in the face of a wage discrimination claim, given that merit is almost entirely subjective.

A bona fide factor other than sex, such as education, training, or experience. This criterion sounds better, except that it only applies under the law if the employer can also show that “the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity.” And an employer’s testimony that business necessity requires paying a particular man more than a particular woman isn’t enough either–the employee can counter that “an alternative business practice exists that would serve the same business purpose without producing the wage differential.”

Effectively, this means that a woman can sue for wage discrimination even if she chooses to work fewer hours or does a different job entirely from the man with whom she is comparing herself.

It is a short step from this nonsensical definition of “equal work” to Marx’s labor theory of value. After all, who’s to say that a nurse practitioner isn’t doing “substantially similar work” to a doctor? Nurses work extremely hard, and work extremely long hours, and have areas of specialty.

Or why not compare the vice president of marketing’s salary with the vice president of accounting? They’re both vice presidents, and their work is similar administratively–and why should marketing be more valuable than accounting?

California has now placed the state and juries across it in the position of arbitrarily deciding what they believe constitutes “fairness” with regard to salary–even though there is no evidence in the first place that women are victims of wage discrimination.

The results of this idiotic attempt at “equality” will be easy to see: businesses organizing out of state in order to avoid liability, and businesses hiring less women in the first place in order to avoid lawsuits.

But none of that matters. All that matters is pandering, even as business dies. After all, as Hillary Clinton has said, the job of government is to “rein in the excesses of capitalism so that it doesn’t run amok and doesn’t cause the kind of inequities we’re seeing in our economic system.”

One of those excesses, apparently, is freedom of employers to choose their employees, and the freedom of those employees to choose to work for those employers.

Ben Shapiro is Senior Editor-At-Large of Breitbart News, Editor-in-Chief of DailyWire.com, and The New York Times bestselling author, most recently, of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.