South Carolina’s Pay Equity Act the First of Its Kind

January 14, 2019 - Christine Gantt-Sorenson

South Carolina’s Women’s Rights & Empowerment Network (WREN) spearheaded two pieces of legislation, a pay equity act and a lactation act, for the South Carolina 2019 Legislative Session. 

An Act to Establish Pay Equity,” was announced in a press conference held at the Statehouse on Monday, January 14, 2019. Legislators intend to introduce the bill this week. The “South Carolina Lactation Support Act,” bill 3200, was introduced on January 8, 2019 with bipartisan support and will be reviewed in a separate blog posting.

“An Act to Establish Pay Equity” is a comprehensive bill addressing the following three categories:

  • pay equity across all protected classes, not just sex or gender;
  • prohibition against employers’ inquiries into wage history; and
  • prohibition against an employers’ actions meant to restrict employees from discussing their wages with other employees.

Regarding pay equity, the proposed bill prohibits payment of lower wages for comparable work due to race, religion, color, sex (including gender identity and sexual orientation), age, national origin, or disability status. The bill evaluates comparable work to include skill, effort, responsibility and work performed under similar working conditions. The bill excludes any reason based on a bona fide exception such as a seniority system (but for time spent on parental, family or medical leave), a merit based system, a pay system determined by quantity or quality, or any other justifiable reason other than race, religion, color, sex (including gender identity and sexual orientation), age, national origin, or disability status. Bona fide factors must be shown to be “job-related with respect to the position in question,” “consistent with business necessity,” and the sole reason for the pay differential. An alternate method for meeting the same business purpose that does not create the pay differential that an employer refuses to adopt will preclude the employer from relying on the bona fide business reason for the differential.

The proposed bill makes it unlawful for an employer to require wage history on an application, require employees to provide their wage history as a condition of employment, or rely on prior wages to determine what wage will be offered to the employee, sign any waiver of rights to disclose wages or discipline or otherwise discriminate against an employee for discussing wage information with other employees. An employer, having already made an offer of employment with a proposed wage, may rely on wage history to offer a higher wage to the applicant assuming the history is provided by the applicant voluntarily, and/or seek to verify the amount. The bill requires employers to provide the applicable wage ranges to an applicant at the earlier of three instances: upon the applicant’s request; while discussing the applicant’s wage expectations; or at the time of extending an offer accompanied by a wage amount.

According to WREN, South Carolina would be the first state in the nation to pass a bill containing all of the protections in the proposed pay equity act. Massachusetts passed an almost identical law, An Act to Establish Pay Equity, effective July 1, 2018 but it is limited to sex or gender. Massachusetts’ Act had bipartisan support. Incidentally, Massachusetts statistics indicate that women earn 84 cents on the dollar earned by men, while South Carolina’s 2017 statistics indicate women earn 81 cents on the dollar when compared to men, and less for women of color.

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Boyd B. Nicholson, Jr., Managing Director, Haynsworth Sinkler Boyd, P.A., ONE North Main, 2nd Floor, Greenville, SC 29601