Oregon’s pay equity law inadvertently requires Oregon employers to ask highly sensitive and invasive questions of their workers.  It should be amended to allow employers to comply with the law without invading employees’ privacy. 

Oregon’s pay equity law allows employers to avoid certain damages if sued provided the employer performs a pay equity analysis and corrects pay disparities revealed by the analysis.  However, the law only affords this protection if the employer’s analysis is “related to the protected class asserted by the plaintiff” and the employer “eliminate[s] the wage differentials for the plaintiff and [makes] reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff.”

The only way an employer can prove that its analysis is related to each employee’s protected class is to ask employees to self-identify what protected classes they belong to.  This means employers must ask workers highly sensitive questions—like the religion they practice or their sexual orientation, gender identity, whether they are transgender, etc.  In other words, the Oregon legislature is encouraging employers to invade the private lives of their workers.  This is not good for workers or for employers, both of which should be encouraged to focus on job performance, not personal characteristics. 

The employers’ equal pay analysis should focus on comparing wages of employees performing comparable work regardless of their protected class.  Therefore, the 2019 legislature should provide protection to employers who perform an equal pay analysis that either is related to the protected class of the plaintiff or that eliminates all pay disparities regardless of protected class.