The impact of pay equity claims in the legal industry and beyond

Women in-counsel in non-management roles were paid 14% lower than the average salary for men in the same role, according to a recent survey of 94 Black in-house lawyers. The survey also showed significant pay disparities that enabled some use the threat of leaving their jobs to negotiate increased salaries, and other pay disparities that were, apparently, quite eye-opening.

Uncovering pay disparity is not new, however. Women in the United States who work year-round are paid 83 cents for every dollar paid to a non-Hispanic, white men. The Covid-19 pandemic only created additional barriers for working women.

Regardless of the job role, sector, and practice area, gender pay disparity in legal workplaces still deeply affect women and particularly women of color. Women are facing a new type of “burn out” in the workplace, according to the Women in the Workplace 2021 Report by McKinsey and Leanin.org. Although there have been more women rising to senior positions, they seem to take on extra work compared to their male counterparts — work for which they are often not compensated. Further, women generally do more to support their team, advance diversity initiatives, lead company-wide initiatives for equity, and are more likely to be allies to colleagues in the LGBTQ communities.

In legal roles, women often lead pro bono initiatives at law firms and are more likely than men to educate themselves about the challenges that women of color face at work, to speak out against discrimination, and to mentor or sponsor women of color.

Legislation is making a difference

Even though much progress has been made in this area, especially in states like New York and California, American businesses still have “much work ahead of us” to truly make pay equal across the genders and achieve equal pay for equal work, according to Jack Tuckner, co-founding partner of the law firm Tuckner, Sipser, Weinstock & Sipser. The firm is known as a women’s workplace rights firm and has been litigating pay equity claims since 1998.

In New York, to bring a successful sex discrimination unequal pay claim, a plaintiff must show that she is being paid less than men who are performing “substantially similar work” on jobs and that other remedies have been exhausted. New York also has banned mandatory arbitration for sexual harassment cases, enacted the Pregnant Workers Fairness Act (which makes pregnancy itself a protected status), and enacted the New York Paid Family Leave law, the nation’s strongest and most comprehensive paid family leave policy.

The playing field is anything but level yet, Tuckner says, because “that will take a few more years when these new laws designed to empower working women will demonstrate a long-term effect.” Recently, Tuckner represented a lawyer who was earning $40,000 per year less than a male counterpart when they were both performing the exact same job and had nearly identical resumes.

Multilateral parties have the greatest impact

Tucker highlights the need for multiple parties within an organization to make changes and drive accountability in uncovering and fixing pay disparities. The first group with the most impact is an employer’s HR function. Leaders in HR should conduct regular check-ins on the compensation rates in the market and how their company is doing with retention rates. It also might be smart for HR to partner with the company’s legal department on some of these processes.

It’s also important for HR leaders to remember that in certain states, undertaking such an internal audit and then acting to remedy the situation, if there are pay inequities, may create a safe harbor that shields the company from future litigation.

Another critical party to address pay inequity issues are hiring managers, since they play a critical first step in deciding who gets in the door, explains Tucker, adding that hiring managers should use “objective metrics” when evaluating candidates in order to ensure that the company is hiring someone based on credentials and skills. Indeed, using such standard measures avoids more subjective criteria such as how much the hiring manager may like the candidate as a person or sees them as a better cultural fit. Overuse of these subjective biases may make a workplace one that does not have a culture that promotes women or individuals with underrepresented identities.

When interviewing candidates, hiring managers shouldn’t ask about salary history (currently, 21 states don’t allow this), family, kids, or other personal matters because those tend to create implicit bias. Beginning on May 15, 2022, employers in New York City must begin listing salary ranges in any advertisements for jobs, promotions, or transfer opportunities.

At the same time, employment candidates also have a role to play in resolving pay disparities, including:

• • • When negotiating a salary, raise, or promotion make sure as an employee you are clear on what you want and be direct. You are your biggest advocate and be transparent about what good pay level you desire; and
    • If you are looking to switch jobs or take on a new role as an employee, look at the new company’s leadership team and make sure you see a wide variety of gender and races in C-Suite members. That is a direct correlation on how much they value diversity in all job roles.

Litigators say that pay equity laws has been considerably weakened by loopholes for employers, inadequate remedies for female employees, and many adverse federal court rulings. This has resulted in pay equity protection that is far less effective than Congress originally intended. In 2016, some states started to take control of these issues, California and New York started the trend by altering the standard and requiring employers to justify pay differentials.

Former Supreme Court Justice Ruth Bader Ginsburg famously said: “Real change, enduring change, happens one step at a time.” That’s why it’s critical that every person — men and women alike — should share in this fight for pay and gender equity in the workplace.