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Show HER The Money

Alfred Blue III

Associate, Thompson Coburn LLP

​ISSUE 12

SPRING 2023

GENDER & SEXUALITY

I. Introduction

The fight for women’s equality in the United States has been a long and arduous journey that has impacted every segment of our society including healthcare, politics, education, and business. Although, as a nation, we have taken significant steps towards a more equitable society, the harsh reality is that we still have much further to go to achieve true equality for women. This reality is most clearly illustrated in the area of equal pay for women.

Today, women—of every race, across all ages, in almost every occupation, and in every state in the United States—are paid less than men. In 2018, the United States Census Bureau found that women of all races earned on average just 81.6 cents for every $1 earned by men of all races.¹ As of 2020, women earned 84% of what men earn.² This gap is even wider for women of color. Latina women generally make only 57 cents for every $1 paid to their white, non-Hispanic male contemporaries³ and Black women typically make only 62 cent for every $1 paid to their male counterparts. These facts hold true regardless of a woman’s level of education, work experience, or profession, and in many cases, the pay gap increases over the course of a woman’s career.


External factors such as access to paid medical leave, occupational segregation, child-rearing responsibilities, and access to affordable childcare create additional hurdles for women seeking to climb the proverbial ladder in the workplace. Despite these obstacles, women in various spheres and industries continue to defy the odds by breaking down barriers that have existed for centuries. Today, there are more female executives and senior leaders at Fortune 500 companies than at any point in U.S. history, women make up one third of the Supreme Court (including for the first time a Black woman, Justice Ketanji Brown Jackson), and our country elected its first female vice president (a Black and South-Asian woman). In the worlds of sports, politics, business, technology, finance, and many others, women have continued to excel at the highest levels (even in male-dominated industries) and sit in seats rarely, or never before occupied by a female. While there is undoubtedly much to celebrate, we should also be careful not to lose sight of the ongoing work necessary to accomplish true equality for women in our country.


II. History


To fully appreciate the evolution of women’s rights in the workplace, one must first understand the history of women’s participation in the American workforce. During the late 19th and early 20th century, a majority of women did not work outside of the home and the small percentage of women that did, stopped working when they married. In 1920, women made up approximately 24% of the labor force and 8.3 million women older than the age of 15 worked outside of the home. At the time, most women did not attend college and due to restrictive social and cultural norms, opportunities available to women outside of the home were extremely limited. Between the 1930’s and 1970’s, women joined the workforce in increasing numbers and by 1970, approximately 50% of single women and 40% of married women held jobs outside of the home.Between 1984 and 2009, the number of working women in America increased from 44 million to 72 million.¹⁰ In 2019—prior to the Covid-19 pandemic—approximately 60% of all women participated in the labor force.¹¹ Although the number of women in the workforce has increased dramatically, state and federal laws did not reflect this cultural shift until 1963.


III. Legislation Regarding Equal Pay


Two pieces of legislation have played significant roles in the fight for equal pay for women in the United States: The Equal Pay Act of 1963 (the “EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII” or “The Act”). The EPA, one of the first laws in U.S. history focused on reducing gender discrimination in the workplace, is a federal labor law that prohibits discrimination by employers based on sex. Specifically, the law requires equal pay for equal work by prohibiting employers from paying men and women different wages or benefits for doing jobs that require the same skills and responsibilities.¹² It is important to note that the EPA applies to many forms of compensation including salary, wages, overtime, bonuses, benefits, stock options, profit-sharing plans, vacation and holiday pay, vehicle allowances, and expense reimbursements.¹³ The EPA also sets the parameters for when paying a man and woman differently may be permissible, like when a pay discrepancy is based on seniority, for example.¹⁴ Though many business groups opposed the legislation at the time, Congress passed the Act as an amendment to the Fair Labor Standards Act of 1938.


Similarly, Title VII of the Civil Rights Act of 1964 has had a significant impact in combating discrimination against women in the workplace. The Act prohibits discrimination based on sex—such as paying a woman less than a man because of the simple fact that she is a woman—as well as the other protected classes of race, color, religion, and national origin.¹⁵ Title VII also makes it unlawful to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.¹⁶ Ensuring that female employees are paid as much as male employees is only one part of Title VII. Title VII also prohibits discrimination in any aspect of employment, including hiring practices, how employees are promoted, recruited, and trained, among other aspects of employment.


While the EPA and Title VII have many similarities, there are several key differences. First, the EPA is limited to gender discrimination, while Title VII covers several protected classes. Next, a plaintiff bringing a claim under the EPA is not required to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing federal discrimination employment laws.¹⁷ A plaintiff bringing a Title VII discrimination claim, however, must file such a charge. Additionally, a plaintiff must bring an EPA claim within two years of the discriminatory pay practice, whereas a Title VII claim must be filed within 180 or 300 days of the discriminatory practice.¹⁸ Fourth, the EPA requires a plaintiff to prove that their job is substantially equal to that of a higher-paid male employee, Title VII does not.¹⁹ Fifth, Title VII, unlike the EPA, which applies to most employers, is not applicable to employers who have less than 15 employees. Finally, under Title VII a plaintiff does not have to work in the same establishment as their allegedly higher-paid counterpart.²⁰


In 2009, President Obama further strengthened protections for women in the workplace by signing the Lilly Ledbetter Fair Pay Act of 2009 (the “Fair Pay Act”), which significantly broadened the period for filing discrimination claims.²¹ This Act overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co., Inc., 550 U.S. 618 (2007), which held that to be timely, a plaintiff must file a discrimination claim within 180 days of a discriminatory salary decision.²² Instead, the Fair Pay Act allows pay discrimination claims to accrue whenever: (1) an employee receives a discriminatory paycheck, (2) a discriminatory pay decision or practice is adopted, (3) a person becomes subject to the discriminatory decision or practice, or (4) a person is otherwise affected by the discriminatory decision or practice.²³ Because of this, employees can pursue unequal pay and discrimination claims against their employers without strict time constraints.


IV. Recent Cases Regarding Unequal Pay


Over the years, the aforementioned legislation has helped curb gender discrimination in the workplace, however, the fact remains that women are still substantially underpaid. In recent lawsuits and EEOC proceedings around the country, employers have been found to be responsible for paying their male employees more than their female employees for the same work or otherwise discriminating against women in the workplace. Such industries include healthcare,²⁴ banking,²⁵ insurance,²⁶ legal education,²⁷ and sports.²⁸


One of the most notable cases involving gender discrimination and unequal pay is Morgan v. United States Soccer Federation, Inc., 445 F. Supp. 3d 635 (C.D. Cal. 2020), involving the U.S. Women’s National Soccer Team (“WNT”). In 2016, several members of the WNT, including some of the biggest names in sports, filed a complaint with the EEOC alleging unequal pay and wage discrimination by the U.S. Soccer Federation (the “USSF”).²⁹ In 2019, after negotiations with the USSF failed to achieve the desired results, 28 members of the WNT filed a federal discrimination lawsuit against the USSF, claiming violations of Title VII and the EPA.³⁰ More specifically, the plaintiffs alleged that the USSF discriminated against the women by paying the male soccer players as much as four times more than the female soccer players, among other claims.³¹


In the complaint, the plaintiffs illustrated that a comparison of the WNT’s pay and the U.S. Men’s National Soccer Team’s (“MNT”) pay showed that if each team played 20 friendly matches or “friendlies” in a year and each team won all 20 friendlies, the female WNT players would earn a maximum of $99,000 for the year or $4,950 per game, while the male MNT players would earn an average of $263,320 for the year or $13,166 per game.³² The lawsuit further alleged facts showing that in 2014, the USSF gave the MNT a performance bonus of nearly $5.4 million after they lost in the round of 16 in the World Cup Tournament in Brazil.³³ The WNT, however, received a bonus of only $1.72 million after winning the 2015 World Cup in Canada.³⁴ Additionally, the plaintiffs alleged that the last time the MNT made it to the World Cup field, the male players each received a $55,000 bonus, while the women only received $15,000 each for making it to the 2015 World Cup—one of the greatest accomplishments in all of sports.³⁵ The MNT also shared a $2 million bonus for qualifying, while the WNT shared only $300,000. ³


After a hard fought and lengthy battle, the plaintiffs reached a historic $24 million settlement with the USSF earlier this year. Notably, the settlement did not only include backpay for previous World Cup prize money, but more importantly, included provisions to ensure that men and women players would receive equal pay moving forward.³⁷


Sadly, women face similar discriminatory behavior in almost every other major industry. In another class action lawsuit against the tech giant Google, several female former employees alleged that Google paid women less than men for the same jobs and that Google locked women into lower career tracks leading to less pay and lower bonuses when compared to their male counterparts.³⁸ Although Google did not admit to any wrongdoing, Google agreed to a $118 million settlement for 15,500 current and former female employees.³⁹ Similar to plaintiffs in other equal pay and gender discrimination lawsuits around the country, the Google plaintiffs sought to ensure that the illegal practices would not continue, in addition to the financial compensation. As part of the settlement, Google agreed to allow third-party experts to review its pay practices for three years and to allow a monitor to assess whether the company was following the experts’ recommendations. The settlement included women who had worked for Google in California since 2013 and covered over 236 different employee titles.


This lawsuit is not the only recent gender discrimination/equal pay lawsuit Google has settled in the last few years. In 2021, Google also agreed to pay $3.8 million to over 5,500 employees and job applicants after the U.S. Department of Labor found pay disparities affecting female software engineers at several of Google’s offices.¹ The Department of Labor also found Google’s hiring practices disadvantaged females and Asian applicants for Google’s engineering positions.²


Beyond the technology and sports worlds, other lawsuits have impacted how women are paid and how juries hold big-name companies accountable for failing to fairly compensate women. Some of these companies include Nike,³ Family Dollar,⁴⁴ and Goldman Sachs.⁴⁵


V. What To Do If You Face Gender Discrimination In The Workplace


If you think your employer is discriminating against you or if you think you may be paid less because you are a woman, here are a few things you can do:

  1. Keep notes of the discriminatory behavior.

  2. Gather helpful documents to support your unequal pay and/or discrimination claim (emails, text messages, job descriptions, performance evaluations, paystubs, complaints filed with employer, notes from conversations with employer).

  3. Review your company’s policies.

  4. Consult counsel from the Equal Employment Opportunity Commission (EEOC) or consult an employment attorney who handles gender discrimination/equal pay cases.

  5. Report the pay difference to HR in writing / file a complaint with your employer.

  6. File a complaint with the EEOC/ file a lawsuit in court.

For others who want to join in the fight against unequal pay and gender discrimination, you can do the following:

  • Speak out against biases and stereotypes in the workplaces and in other settings.

  • Vote for elected officials who support equal pay/anti-discrimination and legislation.

  • Provide equal opportunities for advancement for women in the workplace.

  • Compensate women at the same level that you compensate men.

VI. Conclusion


Though we have not yet reached full equality for women in the workplace, there are several reasons to be optimistic about the future in our country. The conversations surrounding gender equality—that for so long have only occurred behind closed doors—have now taken center stage in our society. In living rooms, classrooms, and boardrooms, men and women are fighting to ensure that women are fairly compensated and afforded the same opportunities as their male counterparts. Where employers fail to pay women equally, the law has provided mechanisms via the EPA, Title VII, and other state laws to hold employers accountable for their discriminatory behavior.

 

Suggested Citation: Alfred Blue III, Show HER The Money, ACCESSIBLE LAW, Spring 2023, at 1.

Show HER The Money [Issue 12]
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Sources:

[1] Mary Leisenring, Equal Pay Day is March 31 – the Earliest Since it Began in 1996, U.S. Census Bureau (Mar. 31, 2020), https://www.census.gov/library/stories/2020/03/equal-pay-day-is-march-31-earliest-since-1996.html.

[2] Amanda Barroso & Anna Brown, Gender pay gap in U.S. held steady in 2020, Pew Res. Ctr. (May 25, 2021), https://www.pewresearch.org/fact-tank/2021/05/25/gender-pay-gap-facts/.

[3] Eleanor Delamater & Gretchen Livingston, 5 Facts About Latinas in the Labor Force, U.S. Dep’t of Labor: U.S. Dep’t of Labor Blog (Oct. 20, 2021), https://blog.dol.gov/2021/10/20/5-facts-about-latinas-in-the-labor-force.

[4] Robin Bleiweis, Quick Facts About the Gender Wage Gap, Ctr. for Am. Progress, fig.1 (Mar. 24, 2020), https://www.americanprogress.org/article/quick-facts-gender-wage-gap/.

[5] Katharina Buchholz, Only 15 Percent of CEOs at Fortune 500 Companies are Female, statista (Mar. 8, 2022), https://www.statista.com/chart/13995/female-ceos-in-fortune-500-companies/.

[6] Janet L. Yellen, The history of women’s work and wages and how it has created success for us all, BROOKINGS (May 2020), https://www.brookings.edu/essay/the-history-of-womens-work-and-wages-and-how-it-has-created-success-for-us-all/.

[7] Women in the Workplace (Issue), Encyclopedia.com: Gale Encyclopedia of U.S. Economic History, https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/women-workplace-issue (last updated Nov. 16, 2022).

[8] Yellen, supra note 6.

[9] Yellen, supra note 6.

[10] Vivian Giang, The Incredible Rise of Women in the Workplace, INSIDER (Mar. 27, 2013, 10:43 AM), https://www.businessinsider.com/women-in-the-workplace-2013-3.

[11] U.S. Bureau of Labor Statistics, Women in the labor force: a databook, Report 1092 (Apr. 2021), https://www.bls.gov/opub/reports/womens-databook/2020/home.htm.

[12] Equal Pay/Compensation Discrimination, EEOC, https://www.eeoc.gov/equal-paycompensation-discrimination (last visited Jan. 27, 2023) (emphasis added).

[14] The Equal Pay Act of 1963, EEOC, https://www.eeoc.gov/statutes/equal-pay-act-1963 (last visited Jan. 27, 2023) (“except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”).

[15] 42 U.S.C. § 2000e-2(a).

[16] Id. § 2000e-3(a).

[17] Overview, EEOC, https://www.eeoc.gov/overview (last visited Jan. 27, 2023).

[18] See supra note 12.

[19] See supra note 12.

[20] Facts About Equal Pay and Compensation Discrimination, EEOC, https://www.eeoc.gov/laws/guidance/facts-about-equal-pay-and-compensation-discrimination (last visited Jan. 27, 2023).

[21] As discussed below, the Lilly Ledbetter Fair Pay Act establishes that a “discriminatory compensation decision” occurs each time a person is compensated pursuant to the discriminatory decision. See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 5 Stat. 123 (2009).

[21] Equal Pay Act of 1963 and Lilly Ledbetter Fair Pay Act of 2009, EEOC, https://www.eeoc.gov/laws/guidance/equal-pay-act-1963-and-lilly-ledbetter-fair-pay-act-2009 (last visited Jan. 27, 2023).

[22] Id. (emphasis added).

[23] Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 5 Stat. 123, 123 (2009).

[24] E.g., EEOC v. Covenant Med. Ctr., Inc., No. 2:20CV10662, 2020 WL 8410776 (E.D. Mich. Sept. 2, 2020) (health care system paid female developer less than two male co-workers).

[25] E.g., EEOC v. First Metro. Fin. Serv. Inc., No. 1:18CV177, 2021 WL 1541381 (N.D. Miss. Mar. 17, 2021) (female bank manager paid less than males in same position).

[26] E.g., EEOC v. Jackson Nat’l Life Ins. Co., No. 1:16CV02472, 2020 WL 359220 (D. Colo. Jan. 7, 2020) (insurance companies discriminated against female and African American employees in pay and promotions, tolerated harassment, and retaliated against employees who complained).

[27] E.g., EEOC v. Univ. of Denver, No. 1:16CV02471, 2018 WL 2793801 (D. Colo. May 18, 2018) (female full professors at the University’s Sturm College of Law were paid an average of nearly $20,000 less than their male counterparts).

[28] E.g., Morgan v. U.S. Soccer Fed'n, Inc., 445 F. Supp. 3d 635 (C.D. Cal. 2020).

[29] Id. at 645 n.3.

[30] Id. at 640.

[31] Id. at 651.

[32] Complaint ¶58, Morgan, 445 F. Supp. 3d 635.

[33] Id. ¶ 61.

[35] Id. ¶ 60.

[36] Morgan, 445 F. Supp. 3d at 641, 650.

[37] Morgan v. U.S. Soccer Fed'n, Inc., No. 2:19CV01717RGKAGR, 2022 WL 16859651 (C.D. Cal. Aug. 11, 2022).

[38] Class Action Compl. ¶¶2–3, Ellis v. Google, Inc., No. CGS-17-561299, 2017 WL 4075207 (Cal. Super. Ct. 2017).

[39] Plaintiffs and Google Agree to $118 Million Settlement of Pay Equity Class Action, businesswire (June 10, 2022 8:42 AM), https://www.businesswire.com/news/home/20220610005611/en/Plaintiffs-and-Google-Agree-to-118-Million-Settlement-of-Pay-Equity-Class-Action.

[40] Id.

[41] Office of Fed. Contract Compliance Programs, GOOGLE LLC, US DEPARTMENT OF LABOR SETTLEMENT RESOLVES ALLEGED PAY, HIRING DISCRIMINATION AT CA., WASH. STATE LOCATIONS, U.S. Dep’t of Labor: News (Feb. 1, 2021),

[42] Id.

[43] E.g., Cahill v. Nike, No. 3:18CV1477JR, 2020 WL 5989202 (D. Or. Oct. 9, 2020).

[44] E.g., Scott v. Family Dollar Stores, Inc., No. 3:08CV00540MOCDSC, 2018 WL 1321048 (W.D.N.C. Mar. 14, 2018).

[45] E.g., Chen-Oster v. Goldman Sachs & Co., No. 1:10CV06950, 2011 WL 803101 (S.D.N.Y. Mar. 1, 2011).



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