The Battle For Equal Pay Is (Still) Real. Here’s What You Can Do

April 10, 2018  |  

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Just in time for Equal Pay Day today, April 10, a federal court has ruled that women can not get paid less than men based on past salaries.

On April 9th, the court declared that employers can’t pay women less than men for doing the same job. “A panel of 11 judges with the 9th U.S. Circuit Court of Appeals cited the federal Equal Pay Act in ruling unanimously that an employee’s salary from a previous job did not justify paying them less than another employee for the same work,” the Huffington Post reported.

“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex,” Judge Stephen Reinhardt (who died in March, but wrote the opinion prior) wrote in the majority opinion.

This latest court decision overturned a previous ruling by a smaller panel of 9th Circuit judges last year, “which stated that employers could in fact pay women less than men for doing the same job, based on what their previous salaries were,” the Huffington Post reported.

This is a major decision in the fight for equal pay. “Women in the U.S. were paid around 80 cents for every dollar their male peers received in 2016, according to the National Women’s Law Center. For women of color, the gap is even wider, with Black women making 63 cents, Latina women 54 cents, and Native women 57 cents for every dollar paid to white men,” HuffPost added.

While women have been complaining for years about unequal pay, when women in Hollywood started to speak up it garnered media attention. Most recently, Catt Sadler explained she departed E! News because there was a massive disparity in pay. In a statement, she asserted that her male co-host on “Daily Pop” had been receiving “close to double [her] salary for the past several years,” Variety reported.

Oscar-winning actress/comedian Mo’Nique caused a firestorm when she demanded equal pay for a Netflix standup comedy special. Most of the response was negative even though Mo’Nique’s stance was ultimately about equal pay for Black women. “Whether Mo’Nique is likeable isn’t important when we’re talking about Black women not being paid what they are owed. Whether you work in the entertainment industry, as a domestic worker, or as a community grassroots organizer, most — if not all — Black women are being underpaid for doing the exact same work as their non-Black woman peers,” Essence reported.

Netflix offered Mo’Nique $500,000, a paltry sum in comparison to what male comics have been paid by the network.

Oprah Winfrey, too battled, for equal pay–on her own TV show. “I built this show around myself and the producers. We were young women in our 30s trying to figure it out and find our own way,” Winfrey said in a TIME Firsts interview, as reported by People. “I was making a lot of money, and my producers were still getting the same salary. I went to my boss at the time and I said, ‘Everybody needs a raise.’ And he said, ‘Why?’ He actually said to me, ‘They’re only girls. They’re a bunch of girls. What do they need more money for?’ I go, ‘Well, either they’re gonna get raises, or I’m gonna sit down. I will not work unless they get paid.’ And so they did.”

Obviously, the fight for equal pay affects women from all walks of life. So what can you do about it? Experts answered a few questions for MadameNoire.

Can you legally find out what co-workers on your same level make?

“Under the National Labor Relations Act, which applies to most private-sector, non-managerial and non-supervisory employees in the U.S., employees have the right to collectively discuss the terms and conditions of their employment. So, if your coworkers are willing to share this information, you can discuss it with them. However, you can’t require your coworkers or your employer to share this information with you,” explained attorney Susan Gross Sholinsky in the Employment, Labor & Workforce Management practice at  the law firm of Epstein Becker Green.

She added, “Some states provide for “pay transparency.” For example, in New York, employers are prohibited from taking adverse action against an employee who inquires about, discusses, or discloses his or her wages or the wages of another employee provided the other employee consents.”

What should you do if you find out you are earning less than others in your same position with the same qualifications?

“Many states have passed equal pay laws (or amended existing equal pay laws). These laws provide similar protections as the federal law. Some of the equal pay laws (including the federal) address only differences in pay based on sex. But there are others that address pay differentials based on other factors,” explained Sholinsky.

“If you learn that there are others in comparable positions earning more than you are, none of the legally defensible factors apply, and you believe that the differential may be unlawful (i.e., it is based on a legally protected characteristic), you may, indeed, wish to discuss this with your employer. You can approach your manager or you can go straight to Human Resources. If there is no willingness by your employer to address the matter, you may wish to pursue legal action against your employer.”

The first step, however, is to take up the issue with your higher-ups, Jesse Harrison, founder and CEO of the Employee Justice Legal Team, an employment law firm, told us. “If a woman finds out she is being paid less than a male counterpart, she should immediately set up a meeting with her boss for an explanation and a possible pay raise. The raise is not necessarily receiving more money for an increase in responsibility; it is a raise for equity. Some employers will scoff at the idea, though, and say that the person earning more has more work to do and has showcased a more effective work ethic and job performance. This might necessitate a visit to Human Resources and a lawsuit,” offered Harrison.

How can you prove there is a disparity?

“It is important for the person to remain calm and collect evidence,” said Harrison. “Collecting evidence is key here: The more data you have, the more likely you will be able to prove pay/sex discrimination in the workplace. Now, some women might be worried that if they complain about their pay, they will lose their job. They want to not disturb the peace and so they will just quietly do their job but suffer psychologically. This is not good and everyone who believes she is being treated unfairly should speak up, especially since the employer would have another lawsuit on his hands if he lets someone go because she brought up the possibility of a lawsuit.”

Should you seek to re-negotiate your salary?

You may wish to first simply make a case that you should get a raise. Relay some recent successes, your tenure, as well as any other factors that may be applicable, and ask for a raise. If this does not yield success, you may wish to communicate what you believe is the legal case that you and your comparator should be earning the same rate of pay,” advised Sholinsky.

What are the risks in fighting for equal pay?

“It is important to remember that threatening to sue or file a claim could put you at risk for losing your job–although it is illegal to be fired for threatening to sue, some companies will actively seek to replace you without violating any laws and will not grant you the raise you want. As the founder of the Employee Justice Legal Team, I have handled both kinds of cases,” Harrison shared. “In one, a woman discovered she was being paid less than a coworker, who was a man; she immediately threatened to take the company to court and to sue everyone involved, and her job performance suffered as a result of the tension. Once she violated company policy and did not meet her quota of clients that month, she was let go and replaced. Another woman, however, learned about her disparate pay and brought it up with her employer. Although the employer denied it, she did her research on other coworkers’ salaries, the going rate of her job, and compared her responsibilities to everyone else’s. She then came to us with plenty of evidence for a lawsuit, and we managed to reach a settlement that left her satisfied.”

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