Women are not imagining the gap. New Jersey got tired of “market rate” as a personality, and in 2018 it wrote a statute. The Diane B. Allen Equal Pay Act, P.L. 2018, c. 9, was signed April 24, 2018, and took effect July 1, 2018. It amends the Law Against Discrimination. The Division on Civil Rights’ own Equal Pay enforcement guidance, updated May 2024, opens by saying pay gaps still exist in New Jersey and across the country. DCR did not need a vibes panel to notice. I am not going to invent a newer percentage for the porch. I am going to send you to the official paper.
Federal equal-pay law is mostly a sex statute about “equal” work. New Jersey’s is not. DCR’s guidance is blunt: the Act generally prohibits paying an employee who is a member of an LAD-protected class less than an employee who is not a member of that class for substantially similar work. Protected characteristics are not a ladies-only club. DCR lists race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability, atypical hereditary cellular or blood trait, and liability for service in the armed forces. If your employer’s story is “we only have to match the men in the exact same cubicle title,” they have not read N.J.S.A. 10:5-12(t).
Substantially similar is skill, effort, and responsibility
N.J.S.A. 10:5-12(t) measures substantially similar work “when viewed as a composite of skill, effort and responsibility.” DCR’s guidance says the jobs need not be identical. Minor differences do not knock you out. Job titles and job descriptions are not the last word; the work itself is. Comparisons of wage rates are based on wage rates in all of an employer’s operations or facilities, not just the office that remembered to keep the women in one building. Compensation, in DCR’s materials, is not only base salary. It includes benefits, bonuses, commissions, overtime, stock options, insurance, vacation, retirement funding. “We matched the hourly rate and hid it in the 401(k)” is not a garden path I would stroll down without reading the guidance.
An employer who is paying a rate of compensation in violation of subsection (t) shall not reduce the rate of compensation of any employee in order to comply. That sentence is in the statute. You cannot “equalize” by cutting the higher-paid person. DCR’s FAQ is a one-line no. The cure is not austerity theater aimed at the colleague who was already paid like a person.
There are defenses. A seniority system. A merit system. Or a bona fide factor other than the protected characteristic — training, education, experience, quantity or quality of production — and then four more statutory hoops, including that the factor does not perpetuate a protected-class differential, is applied reasonably, accounts for the entire gap, and is job-related and based on a legitimate business necessity. “Market” is the story employers tell when they do not want to open the spreadsheet. DCR’s guidance even flags salary history as a factor that may perpetuate a preexisting gap. The employer bears the burden of proving a pay differential is nonetheless permissible. Intent to discriminate is not required for liability. That is DCR, not my poetry.
The six-year lookback is in current DCR materials
DCR’s May 2024 Equal Pay guidance states that the Act amended N.J.S.A. 10:5-12(a) to create a six-year “lookback” period. An employee who establishes discrimination in compensation may recover up to six years of back pay if the discrimination was continuous and the most recent violation occurred within the LAD’s two-year statute of limitations for a court filing. A violation occurs each time the employee is affected by a discriminatory compensation decision or practice, including each time a paycheck lands. DCR’s one-page fact sheet, The Diane B. Allen Equal Pay Act, and the same May 2024 guidance, say a DCR complaint is timely if filed within 180 days of the most recent discriminatory paycheck; a lawsuit in court within two years of that paycheck. Deadlines are short. “We’ll revisit comp in the next cycle” is not a filing.
You may discuss pay. They may not punish you for it.
Wage secrecy is how a gap stays a house plant nobody waters in public. N.J.S.A. 10:5-12(r), as amended by the Act, prohibits retaliation against an employee for requesting from, discussing with, or disclosing to another employee or former employee, a lawyer, or a government agency information about job title, occupational category, and compensation — including benefits — and about gender, race, ethnicity, military status, or national origin of employees. DCR’s guidance adds: it is unlawful to require an employee or prospective employee to agree not to discuss compensation as a condition of employment. You are not required to disclose your own pay to a coworker. You are allowed to ask. You are allowed to talk to a lawyer. You are allowed to talk to DCR. Treble damages are on the table for subsection (t) and subsection (r) violations; a court must award them if a jury finds those violations, and DCR’s Director may award them. Read the guidance for the exact shape of that. I am not inventing a fee or a jackpot.
DCR enforces the LAD, including this Act. Start at njcivilrights.gov or bias.njcivilrights.gov. Official materials: the May 2024 Equal Pay guidance, the Act text, and the fact sheet. You do not have to complain to HR first. DCR said that too.
Need a map of which door is which for a mom’s complaint? See where a New Jersey mom actually files. Need a referral, not a pep talk about leaning in? Email hello@bonnielawconsulting.com or use /contact. I will not name other firms on this porch. New Jersey wrote this statute so an employer cannot hide behind “that’s just the market.” The market, historically, has had a gender. The LAD noticed.