Allred, Maroko & Goldberg

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Uncovering The Truths Behind The Gender Pay Gap

Most of us would never think to ask someone - much less a co-worker - how much money he or she makes. In fact, in most U.S. workplaces, the subject of salary and pay remains taboo. With the impetus of the "Me Too" movement, however, the subject of pay and, specifically, the disparity between how much female employees earn versus their male counterparts is getting more attention.

For more than 50 years, women have been an important fixture in workplaces throughout the U.S. Today, nearly 50 percent of U.S. women work outside the home and a record number hold managerial and executive positions. When it comes to pay and overall compensation, however, statistics show that female employees consistently lag behind.

Just How Big Is The Pay Gap?

According to the Institute For Women's Policy Research, in 2016, a full-time female employee in the U.S. earned an average of 80 cents for every dollar earned by a full-time male employee. Today, questions surrounding why the gender pay gap persists are being spurred by media stories detailing Hollywood actresses and CEOs who discover they are being paid a fraction of what their male co-stars and colleagues earn. In fact, no working woman is immune from the gender pay gap, with female employees earning less than male employees in virtually every job and sector.

Hard numbers and statistics do not lie and it is difficult to dispute that the gender pay gap is a byproduct of systemic gender discrimination in many U.S. industries and workplaces. For many women, however, proving that gender is the reason they were passed up for a promotion or earn less than a male colleague can be challenging.

How Employers Justify The Gender Pay Gap

Both federal law (Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963  (EPA)) and state laws (such as the California Fair Pay Act and the New York Achieve Pay Equity Act), make it illegal for employees to pay an employee either more or less based on gender. When a disparity in pay exists, it is up to an employer to justify why. In federal gender discrimination cases involving pay, employers frequently cite one of four defenses that are outlined in the Equal Pay Act, affirming that a pay discrepancy exists due to:

1) Pay based on a merit system
2) Pay based on seniority
3) Pay based on quality or quantity of work/work product
4) Pay based on any other factor, excluding an employee's gender

Under California state law, employers can no longer rely on an employee's or applicant's prior salary alone to justify the difference in pay. The idea behind the law is to stop perpetuating the discriminatory effects of salaries that may be lower because of unlawful past discrimination themselves. The New York State Assembly recently passed a similar bill prohibiting employers from relying on an employee's or applicant's prior salary or even inquiring about the salary history of job candidates. The New York State Assembly also recently passed legislation to extend equal pay legislation beyond gender to include banning differential pay based solely on race or national origin. These bills still need to be approved by New York State's Senate and Governor before becoming law.

What Can Affected Working Women Do?

If you are a woman who has been affected by gender discrimination in the workplace, an attorney can evaluate your case and provide advice and options for moving forward with an employment discrimination lawsuit. To build your case, it is important to obtain as much documentation as possible. Key evidence in a gender pay discrimination case may include:

• Job descriptions
• A detailed list of job duties
• Annual reviews
• History of salary increases
• Pay stubs
• A detailed list of completed education and on-and off-the-job training courses
• Any other documentation that provides evidence of job performance and duties

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