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Equal Pay: It is Fundamental

Equal Pay: It is Fundamental

by | Jan 19, 2021 | Equal Pay, Pay Issues

The importance of equal pay just got a shout out in a recent Fifth Circuit case. The money quote is:

“Equality of opportunity is fundamental to who we are, and to who we aspire to be, as a nation. Our commitment to this ideal is deeply engrained in our Constitution and in numerous state and federal laws. And a core component of our promise of equal opportunity, regardless of the circumstances of one’s birth, is non-discrimination in pay. … But what we do not accept are pay disparities due to the employee’s race or sex.”     Lindsley v. TRT Holdings, Inc. 2021 WL 62251(5th Cir. 2021).

Here, Sarah Lindsley was Food & Beverage Director at the Omni Hotel in Corpus Christi.  Her starting pay was $11,649 lower than that of her male predecessor. Her starting salary was also lower than his two male predecessors.  

Lindsley sued for pay discrimination under the Equal Pay Act, Title VII, and Texas Labor Code Chapter 21. To establish a prima facie case under the Equal Pay Act, Lindsley had to show that “she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions” and that she was paid less than members of the opposite sex.  To establish her prima facie case under Title VII and Texas Labor Code Ch. 21, Lindsley had to show she was paid less than members of the opposite sex for “work requiring substantially the same responsibility.”

Lindsley showed that the three men who held the exact same job she held before her were all paid more than she was paid. Yet, the district court concluded Lindsley introduced no evidence to show that her job as Food & Beverage Director was similar to her predecessors aside from having the same job title.

The Fifth Circuit made short shrift of that argument, saying “far from failing to show that her job was in any way similar, Lindsley showed that she held the same position  as Walker and Pollard did, at the same hotel, just a few years after that did—and that she was paid less than they were.”  It concluded that “no more is needed to establish a prima facie case.”

Because Omni had not put forth a non-discriminatory reason to explain the pay disparity, the Fifth Circuit reversed and remanded the case.

Here, Lindsley’s predecessors were paid more than she was paid.  One often forgotten fact is that a successor in a job can also be cited as an appropriate comparator.  See 29 CFR sec. 1620.13(b)(4). 

The Fifth Circuit got this case right.  If a woman is paid less than the men who preceded her in the same job, a claim exists.

What remains to be seen in further litigation is how the company will explain the reason for the pay difference.  Stay tuned.

Stop Joking and Start Leading

Stop Joking and Start Leading

by | Nov 3, 2020 | Equal Pay

Stop Joking and Start Leading

Dallas sportscaster Dale Hansen recently stepped into controversy when he made a bad joke about women’s pay.

In an on-air conversation with meteorologist Pete Delkus, Delkus complimented Kristen Welker for the excellent job she did moderating the final Presidential debate.  When  Delkus said, “Someone really smart finally put a woman in charge and look what she did tonight,” Hansen inexplicably responded with, “If you have a woman like a co-anchor or news director or station manager, I think it’s a fantastic thing because they work cheaper – and that leaves more money for you and me.”

Wow.  To his credit, Hansen was quick to own that his “joke” was a “horrible joke,” and he sincerely apologized for it.

However, it raises the question:  why are we joking about women earning less than men anyway?

It is time for people like Hansen – who is in a leadership role and with a voice—to stop joking about benefitting from the fact that women are paid less and lead the effort for real change.

In his apology, Hansen acknowledged that equal pay is a real problem that has affected even his own daughter and granddaughter.  Hansen acknowledged that it is offensive, so many women have to fight for equal pay. Hansen claims he cares about the pay disparity.

So, the question becomes:  what is he doing about it?

Male leaders need to ask themselves the question:  What am I doing to stop this problem?

One first step is for each employee in a company to pressure employers to allow pay transparency.  Each employee needs to discover what peers are paid.  Men in leadership need to take a hard look at salary data and look for areas when women are being paid less and then ask why that is happening. 

Salesforce is an example of one company that took on this challenge and did it right, as reported by Wired. https://www.wired.com/story/how-salesforce-closed-pay-gap-between-men-women/.

What is most important, Salesforce recognized this is an ongoing issue.  There is no “one time” fix.  They have to continually monitor pay data to make sure that they do not slip backward.

In a media company, where Hansen works, it is far too common for talent contracts to contain confidentiality provisions that prevent employees from sharing the terms of their contract.  Thus, the employees are explicitly prevented by the contract from sharing pay information.

This can be an automatic violation of the National Labor Relations Act.  When challenged, a media company might need to rewrite all of its talent contracts.  It will take many of those challenges to accomplish that change in the industry.  However, making sure that an employee can share his or her salary with other co-workers without violating a contract will be a huge first step in eradicating pay discrimination.

Hansen is not the first man to make a bad joke about benefitting from the pay disparity.  However, it is still deeply disappointing when senior leaders actively try to take advantage of the pay disparity to hire a woman for a role “because they work cheaper” or joke about the fact that leaves more money on the table for the male employees.

Stop joking and start leading the charge to fix this.

Change The Law

Change The Law

by | Oct 2, 2020 | Equal Pay, Gender Discrimination, Pay Issues

If you do not like the law, change the law.

Sometimes, badly drafted laws lead to an unjust outcome. When that happens, we need to change the law.

Ruth Bader Ginsburg, the revered United States Supreme Court justice, died on September 18, 2020. When she died, I remembered how her powerful dissent in Lilly Ledbetter v. Goodyear Tire & Rubber Co. caused Congress to change the law. Justice Ginsburg’s strong dissent explained why the law needed to be changed and gave Congress a road map to follow.

At Fitzgerald Law, pursuing equal pay is a passion. And the story of Lilly Ledbetter explains why we sometimes need to focus our efforts on changing bad laws.

Lilly Ledbetter had worked for Goodyear for decades—paid less than men the entire time. Ledbetter did not know she was paid less than her male peers. Goodyear—like most employers—did not make that fact public knowledge. Only decades into her career did Ledbetter discover she had been underpaid. When that happened, she sued.

One of her claims alleged pay discrimination under Title VII. However, Ledbetter had a problem. Under Title VII, you must file a charge of discrimination with the EEOC within 300 days of an “adverse employment action.” The issue:  was the “adverse employment action” Goodyear’s original decision to pay Ledbetter less than her male peers, or was it each paycheck in which she was underpaid?

This mattered a great deal. If the adverse employment action was Goodyear’s original decision to pay Ledbetter less, the 300-day deadline to file her charge had expired decades before. Yet, if it was based on each paycheck she received in which she was paid less than her male peers, then Ledbetter’s charge was timely filed.

The Supreme Court ruled that the deadline began on the date the discriminatory decision to pay Ledbetter less had been made by Goodyear. Never mind that Ledbetter did not learn of the decision for decades. 

So, Lilly Ledbetter lost.

However, Ruth Bader Ginsburg’s brilliant dissent explained how this outcome was a complete travesty of justice. She eloquently explained how companies hide pay discrimination and make it hard for a woman to discover she is underpaid compared to male peers.  She decried the injustice of it.

The many people who recognized the injustice of this result went to work.  They changed the law. 

In 2009, the first law that President Barack Obama signed into effect was the Lilly Ledbetter Fair Pay Act.  This law revised Title VII to clarify that the deadline to file a complaint of pay discrimination runs from each discriminatory paycheck—not the original decision to pay the employee less.

This landmark law changes the game and gives women a true chance to discover and timely file pay discrimination claims.

However, our work is not done.

Most people do not appreciate that the Texas law protecting women from pay discrimination claims requires that a charge be filed within 180 days of the “adverse action.”  For the past ten years, Texas refused to amend this law to adopt a state version of the Lilly Ledbetter Act.

So, in Texas, to pursue a pay discrimination claim under state law, you must file a charge of discrimination within 180 days of when the discriminatory pay decision was made by the company. 

Because companies take pains to keep salary data confidential, the odds of employees meeting that deadline are slim.

Texas lawmakers are failing women.  There is no good reason not to adopt a state equivalent of the Lilly Ledbetter Act—unless it is just an effort to allow companies to continue to pay women less and get away with it.

It is time to ask more of our Texas state senators and representatives. As we head into a new legislative session in 2021, ask them to do more.

 Let us continue the fight Ruth Bader Ginsburg started. If you do not like the law, change the law.

Cases to Watch in 2020

Cases to Watch in 2020

by | Jan 1, 2020 | Courts Cases, Discrimination, Equal Pay, Sexual Orientation

Cases to Watch in 2020 

Get prepared for some big developments in employment law in 2020.  One key case should answer a longstanding  question about whether Title VII protects a person from discrimination because of sexual orientation.  The other key case may lead to real and systemic change in equal pay.

Sexual Orientation Discrimination 

A trio of cases pending at the United State Supreme Court considers the issue of whether sexual orientation is a protected category under Title VII.  

Title VII outlawed discrimination “because of” sex.  What does that mean?  If a person is gay or lesbian and is discriminated against at work, is that “because of” sex?  In the past, most courts said no— sexual orientation was not protected under Title VII.  So, an employee fired for being gay or lesbian had no legal claim he or she could pursue. 

In recent years, some cases eroded those legal holdings. And, last year, 3 of those cases went to the Supreme Court.  Now, the Supreme Court will make the final decision on this issue.  We should get an opinion out of the Supreme Court on this issue before the end of June.

Right now, there really is no way to predict which way the court will go on this issue.  However, if the Court finds that sexual orientation is not protected under Title VII, the next stop in this legal battle will likely be Congress. If the Supreme Court finds that sexual orientation is not covered by the law, it is likely that Congress will be lobbied to change the law.

Equal Pay  

In 2019, the USA women’s soccer team cleaned up at the World Cup.  Notwithstanding their stellar success, the women were still paid significantly less than the far less successful male soccer team.  In a case that has gotten much publicity, the women sued for pay discrimination.  The women brought claims under both Title VII and the Equal Pay Act for the pay difference. 

In November, the women got a big victory when the court certified the lawsuit as a class action for the Title VII claim.  The lawsuit also got certified as a “collective action” on the Equal Pay Claim.  This was vigorously opposed, so getting this relief from the court is a big win for the women’s team members. 

And, the court set this case for trial in May 2020.  That means that we do not have to wait too long to see whether this case will actually go to trial or whether the parties reach some agreement. 

This case has been so important because the publicity it received has really stirred a dialog about equal pay issues and caused many people to start actively thinking about pay discrimination.  No matter what happens with the women’s soccer team, that conversation is certainly going to continue.

Stay Tuned!