February 12, 2015

Fix the System, Not the Women

Michele Coleman Mayes

One of the eye-opening revelations arising out of the recent Sony Pictures e-mail hack is the disclosure that the female copresident of Columbia Pictures earns nearly $1 million less per year—or 37 percent less—than her male copresident counterpart, according to Fortune.com. While the specifics of this situation are beyond the scope of this column, what little we do know raises serious questions, yet again, concerning gender pay equity and transparency in compensation in still another industry.

Can there be circumstances where two people theoretically performing the same work legitimately are paid different salaries? Yes. The critical issue, however, is whether such pay differences are reasonable and not the result of implicit bias, where subconscious assumptions are made to the detriment of women. For instance, it is all too easy to justify salary differences where the man is a lateral hire and the woman moved up the ranks within the organization.

Through the years, women have been told to ask to be paid what they are worth. They have been encouraged to act thus and so if they want to succeed in law firms, corporations, academia, and other work environments. Indeed, one of the Commission on Women in the Profession’s highest priorities has been to provide women lawyers with the information and tools they need to advance into leadership positions in all areas of the law through publications, initiatives such as the Grit Project, programs, and other outreach. Women—and men—should work to be the best that they can be.

We know most compensation decisions are not transparent. To seek and negotiate equal compensation, one needs to know what others are earning and the right questions to ask. Toward this end, the ABA Task Force on Gender Equity published What You Need to Know about Negotiating Compensation (2013), a guide for women lawyers to use to negotiate their compensation. It presents strategies and techniques for understanding a firm’s compensation system, how it works, and how best to navigate the system for enhanced compensation. This publication is available for download at no cost at www.americanbar​.org/GenderEquity. As laudable as this work is, once again it places the onus on women.

But women are only one part of the equation. The other part is the system itself. If the system were fair, it would be able to withstand scrutiny in the light of day—otherwise known as transparency. It simply cannot undergo such an examination without revealing serious flaws. It begs the obvious to say that the system is not fair. Now what?

In Closing the Gap: A Road Map for Achieving Pay Equity in Law Firm Partner Compensation (2013)(available at www.americanbar.org/Gender​Equity), the Gender Equity Task Force offers 12 detailed recommendations that law firms can incorporate into their compensation system to eliminate the gender pay gap. Spoiler alert: It all starts at the top. When those with the power to effect systemic change use it to achieve the goal of gender pay equity, the entire legal profession wins. This ending shouldn’t just happen in the movies.

Michele Coleman Mayes

Michele Coleman Mayes is chair of the ABA Commission on Women in the Profession. She is vice president, general counsel, and secretary for the New York Public Library.