Women are still wildly underpaid for doing the same work as men. (Here’s a new 3-question calculator to see how a woman’s pay in your field compares to a typical male in the same field.)
That’s the bad news.
The good news? Women are coming forward in huge numbers to sue employers who pay men more for doing the same work (or less). And they’re winning. I’ve represented many women in these unfair-pay lawsuits. (President Barack Obama made the Lilly Ledbetter Act, one of several powerful equal-pay laws, the very first law he signed when elected President.)
Equal Pay Act (EPA) lawsuits are easier to prove than most discrimination claims. You do not need to show your employer intended to discriminate. You only have to show it is happening. Titles don’t matter; job content is what decides whether two jobs are substantially equal. “Unequal pay” includes not only salary, wages and overtime, but also bonuses, stock options, profit sharing, vacation and holiday pay, reimbursement for travel, life insurance and other benefits.
Here are five simple questions to ask yourself if you feel males are paid more for the same work:
- Do the jobs – meaning yours and those of the males you identify – require the same level of skills?
- Do the jobs require the same level of physical or mental effort?
- Do the jobs require the same general level of responsibility?
- Do the jobs have the same basic type of working conditions?
- Are you in the same establishment as your male comparators?
The “same level of skills” test refers to the skills required by the job, not the skills of the employees. Your male coworker might have a Ph.D. in physics, but if it’s not relevant to the job, it’s not relevant to the pay. The “same level of physical or mental effort” test zeros in on the duties. A difference in pay might be justified if the male coworker has significant additional tasks. But modest differences are irrelevant. And if males are always given additional work that triggers higher pay, this can be discrimination as well. The “general levels of responsibility” test involves a similar question. Are your responsibilities basically the same as the males? Again, minor differences don’t count. There will always be some differences. The question is whether those differences justify higher pay. The “working conditions” test may be relevant only if the male employee works in a hazardous location, for example. The last element – “same establishment” – asks whether you and the males used for comparison purposes are in the same geographic area. Employees in Kickapoo, Texas, for example, might justifiably be paid less than those in New York City because of cost-of-living differences.
The great news is that you can pursue the claim going back as far as three years, and you can recover the wages you should have been paid. In many cases, you will also enjoy a pay increase to bring your pay in line with males. Even better, the amount to which you are entitled could be automatically doubled by the court unless your employer can show the pay discrimination was in good faith. In my experience, few employers have a good explanation.
If you feel you might be the victim of gender-driven pay unfairness, talk to an attorney expert in employee rights. As always, remember to ask the lawyer the basic questions: How many years of experience, and how many cases, have you personally handled? How many trials have you won? Do you split your time between many kinds of cases or do you limit your work to employee rights only? And, finally, do you represent any employers? There are many fine lawyers who represent employers, but it is important to hire an attorney who not only has highly-specialized, expert-level knowledge in employment law but who is fully committed to the fight for employees only. My background here.