Equal Pay

Being Paid Less Than Your Co-Workers of The Opposite Gender

As the Supreme Court has noted, “the wage structure of ‘many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.’ The solution adopted [to resolve this] was quite simple in principle: to require that ‘equal work will be rewarded by equal wages.’” Corning Glass Works v. Brennan.

The Equal Pay Act prohibits employers from paying a woman lower wages than it pays a man for the same or similar job. Where this occurs, women (either individually or as part of a collective action with similarly situated female coworkers) may sue their employer seeking backpay and an equal amount in liquidated damages, as well as recovery of their attorneys’ fees and costs, to make them whole for being treated differently than their male coworkers.

The Equal Pay Act provides an important method for challenging unlawful and discriminatory pay practices for employees across numerous industries, including those discussed in more detail below. If you believe you have been paid less than your male coworkers for equal work, contact us at info@mselaborlaw.com.

Aside from simply being paid a smaller salary or wage than your male counterparts for the same position, other evidence of a violation of the Equal Pay Act includes:

• Absence of women in leadership positions;
• Roadblocks to promotions;
• Discouragement from discussing and/or negotiating salary increases;
• Lower salary than male predecessor for the same job, or if you have recently changed jobs, learning that your male replacement was offered a higher salary;
• Fewer benefits are provided than to male colleagues such as stock options, paid leave, or pension contributions; or
• An atmosphere akin to a “boys club” or “fraternity.”

Below we have provided additional resources for equal pay in the workplace. If you are interested in leaning more, please contact us using the Contact Us form or by emailing us at info@mselaborlaw.com

Technology and Engineering

Wage discrimination has been rampant in Silicon Valley, and in the tech industry more broadly. While the problem persists, employees working in the technology industry have been successful in fighting for equal pay under the Act.

At Google, the Department of Labor is investigating wage disparities between men and women, and more than 60 current and former employees are considering bringing a class action lawsuit alleging violations of the Equal Pay Act as well as gender discrimination, arguing that they have earned less than men despite equal qualifications and comparable positions. They also allege that the culture at Google is “hostile to women.” See Sam Levin, “More than 60 women consider suing Google, claiming sexism and a pay gap,” The Guardian, (Aug. 8, 2017). The filing of a lawsuit would further build on the Department of Labor’s pending action against Google, in which the government alleges that the company’s labor practices include “systematic compensation disparities against women pretty much across the entire workforce,” in violation of federal law as well as the terms and conditions of Google’s federal contracts. Id.; see also Bourree Lam, “The Department of Labor Accuses Google of Gender Pay Discrimination,” The Atlantic (Apr. 7, 2017).

Microsoft is similarly facing a class-action lawsuit alleging that female workers were passed over for multiple promotions, while the company instead promoted their less qualified male colleagues. The lawsuit claims that the company’s “stack ranking” evaluation, compensation, and promotion system – which required employees to be ranked from best to worst on a scale of 1-5, and set a cap on the portion of employees who could receive each ranking – results in female technical workers receiving lower scores than their male colleagues. Matt Day, “Judge allows gender-bias case against Microsoft to go ahead,” The Seattle Times (Oct. 17, 2016). See also Sara Ashley O’Brien, “Microsoft sued for gender discrimination,” CNN Tech (Sept. 16, 2015). This case is currently pending.

Joanna Smith — a female engineer holding the position of Engineer IV employed by Prince George’s County, Maryland —won $139,633 in lost wages and liquidated damages, in addition to costs, in a lawsuit filed by the EEOC alleging gender discrimination and violation of the Equal Pay Act. Smith’s attorneys argued that the county “rebuffed Smith’s efforts to negotiate a higher starting salary matching her experience and education, but just two weeks later, hired a male for a comparable Engineer III position and paid him the higher salary he requested, even though they were performing substantially equal work.” Smith also presented evidence of men in the positions of Engineer II and Engineer III who were paid higher salaries than Smith, despite having less experience and performing less complex duties. See Anna-Lysa Gayle/ABC7, “Female engineer to receive $139,633 in lost wages following discrimination lawsuit,” WJLA.com (Jun. 6, 2017). See also Arelis R. Hernandez, “A female engineer earned less for equal work. Now Prince George’s must give her lost wages – and a raise.,” The Washington Post, (Jun. 5, 2017).

Similarly, in 2016, Qualcomm agreed to pay $19.5 million to settle a gender discrimination lawsuit on behalf of 3,300 women in science, technology, engineering and math positions, who alleged that they faced “systematic roadblocks to equal pay and promotions at the company” and noting that less than 15% of “senior leadership positions” are held by women. Mike Freeman, “Qualcomm enters $19.5 million gender bias settlement,” San Diego Union Tribune, (Jul. 26, 2016).

Finance

Women in the financial industry, which continues to be male-dominated, have recently pursued claims through the Equal Pay Act to attempt to remedy disparities in wages between men and women. For example, Heritage Bank in Nebraska was required to pay nearly $31,000 to an insurance sales employee who was paid almost $10,000 less than the male employee who replaced her. Heritage Bank will also be required to implement policies to prevent future violations of the Equal Pay Act, hold annual anti-discrimination training, and report to the EEOC on a semi-annual basis. KETV Staff, “Woman awarded over 30k after being paid less for the same job as a man,” KETV 7 Omaha, (Jul. 11, 2017).

In 2012, a Florida woman working for Citicorp as a service center manager won an Equal Pay Act lawsuit in which she alleged she was bypassed for a raise and a bonus on two occasions – while her male predecessor made almost $40,000 more than she did – and requested a market analysis be done within the company, which her supervisor failed to authorize. An arbitrator found that the evaluations done by the employee’s supervisor were too subjective, and that the company’s attempt to blame the recession on her lower salary fell flat because testimony demonstrated that other employees received bonuses larger than the employee’s entire salary during the same time period. Elizabeth Behrman, “Tampa woman wins lawsuit against Citicorp for pay discrimination,” Tampa Bay Times, (Apr. 16, 2012).

Higher Education

Women working in higher education also have faced rampant salary and wage discrimination. For example, the EEOC recently filed a lawsuit on behalf of a law professor at Denver University, who after working for the University for 37 years nevertheless was paid an annual salary less than every male full-time law professor, including those who were hired after her. On average, full-time female law professors made $20,000 less annually than their male colleagues. The Denver Post, “EEOC files lawsuit over pay disparities for women at DU law school,” The Denver Post (Jun. 22, 2017).

Professional Athletics

Professional athletes also have been fighting tirelessly to secure equal pay for equal work. For example, in 2016, five high profile players on the U.S. Women’s Soccer Team filed a complaint with the EEOC alleging wage discrimination by the U.S. Soccer Federation. The complaint alleges that “each member of the women’s national team is paid thousands of dollars less than the men at nearly every level of competition, from playing ‘friendly’ matches to qualifying and playing in the World Cup.” See Bill Chappell, “U.S. Women’s Soccer Team Members File Federal Equal-Pay Complaint,” NPR, Mar. 31, 2016). Specifically, the complaint explains that the women’s and men’s teams are subject to the same requirement of playing a minimum of 20 “friendly” matches, but that the women are only paid if they win and are awarded a sum of just $1,350, whereas the men are guaranteed a sum of $5000 regardless of outcome and can make up to $17,620 per game depending on the opponent’s rankings. Id. Further, the complaint cites to a report finding that “despite the women’s team generating nearly $20 million more revenue last year than the U.S. men’s team, the women are paid almost four times less.” Id. See also Christina Cauterucci, “U.S. Women’s National Team Files Wage Discrimination Complaint Against U.S. Soccer,” Slate (Mar. 31, 2016),.

Similarly, the U.S. Women’s Hockey Team threatened to, and almost did, boycott, the 2017 women’s ice hockey world championships – hosted by the United States – unless the Olympic governing body agreed to pay the players fair wages and offer more year-round support. Until the recent agreement was reached resolving their dispute, USA Hockey did not pay its female players in non-Olympic years, and paid them only $6,000 in the year before an Olympics. Further, male players received far more job benefits than did the female players, including disability insurance paid for by USA Hockey and the ability to bring guests to world championship games. As CNN stated, “[t]he women’s hockey fight for fair pay is just the latest in a series of public battles for gender parity in sports.” Ahiza Garcia, “While the U.S. men’s hockey team sat in business class, the women sat in coach,” CNN (Mar. 24, 2017).

Pharmaceutical Sales

Many women in pharmaceutical sales are beginning to use the Equal Pay Act to obtain the compensation that they deserve – compensation equal to what men performing the same work receive. For example, more than 400 women employed by Merck have joined a class and collective action lawsuit alleging wage discrimination and that the company regularly paid female sales representatives less than their male colleagues and denied women opportunities for career advancement, among other things. Brendan Pierson, “Merck sex discrimination case could be collective action – judge,” Reuters (Apr. 27, 2016). See also Sy Mukherjee, “More Than 400 Women Are Now Suing Merck for Unequal Pay,” Fortune (Jul. 21, 2016).

Similarly, female sales representatives employed by Novartis settled a lawsuit brought under the Equal Pay Act for $8 million. The sales representatives alleged that they were denied equal pay and promotional opportunities because of their gender, arguing that the company “fostered a boys’ club atmosphere and mentality” that is hostile to women and restricts their access to leadership positions. Tellingly, this was not the first time Novartis was in this position; the company was sued approximately 6 years earlier for gender discrimination, which resulted in a $152.5 million class action settlement. Ed Silverman, “Novartis agrees to settle sex discrimination suit for $8m,” Stat News (Jan. 4, 2016). See also Daniel Wiessner, “Novartis unit hit with $110 million gender discrimination suit,” Reuters (Mar. 17, 2015).

Entertainment and Media

There has been significant attention to equal pay issues in the media and entertainment industries, such as a speech by Frances McDormand at the Oscars where she highlighted inclusion rider clauses in Hollywood contracts, and outcry over A-list actresses in major roles earning less than their counterparts, such as Claire Foy’s lower pay compared with “The Crown” co-star Matt Smith, and Michelle Williams’s $80 per diem during reshoots for “All the Money,” for which her co-star Mark Wahlberg received an additional $1.5 million.

But equal pay concerns in the entertainment and media industries do not just exist at the highest levels, and litigants are actively fighting equal pay disparities in the industries under both federal and state law equal pay statutes. A 2017 article placed the pay gap between men and women in California at $79 billion. In February 2018, channel manager and project manager Elizabeth Rose filed a class action and collective action against her former employer Vice Media, alleging violations of the federal Equal Pay Act and similar statutes in New York and California based on allegations of systemic pay discrimination against all females employed by Vice Media, regardless of the level. In her complaint, Ms. Rose alleged that she found out she was paid $25,000 less than a male colleague she herself had hired, and that the male colleague had been selected for a project because of a perception that he would “get along” better with a male-dominated team on the other end of the project. This case is ongoing.

California’s Fair Pay Act requires employers to provide equal pay for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” The Act eliminated a requirement for the job location to be the same, and male and female employees may be required to be paid equally even if they have different job titles, as long as they perform “substantially similar” duties. Under the Act, employers can only assert a narrow list of exemptions from the Act’s requirements, including (1) a seniority system; (2) a merit system; or (3) a system that measures earnings by quantity or quality of production. A fourth category, “a bona fide factor other than sex, such as education, training, or experience,” requires that the employer demonstrate that the proffered reason for the wage disparity does not arise from a sex-based differential in compensation, is job related, and is consistent with business necessity. Any explanation provided by the employer must “account for the entire wage differential.” Finally, the Fair Pay Act prohibits employers from retaliating against employees for disclosing their wages, discussing the wages of others, inquiring about another employee’s wages, or encouraging another employee to exercise their rights under the new law.

With the increased attention to equal pay issues in the media and entertainment industries, recent favorable court decisions, and the passage of California’s Fair Pay Act, women in the media and entertainment industries have a strong incentive at all levels to scrutinize whether they have been paid less than their male counterparts.