Employment lawyers explore challenges of closing gender pay gap

A panel of women attorneys at the ABA Midyear Meeting in Miami Feb. 3 tackled the current gender pay gap in the U.S. workplace, discussing the reasons and the law as they sought to separate fact from fiction.

Most experts agree that women generally make 80 cents for every dollar a man makes in a comparable job. But the explanations range from women spending more time away from work as caregivers to gender bias in the workplace.

“The statistics are such that women are earning less,” said Elaine W. Keyser, a shareholder at Littler Mendelson P.C., in Miami. “But the question is why?”

The program, “Bridging the Gap: Issues with Equal Pay,” explored the current state of federal and state laws, the differences between the Equal Pay Act and Title VII concerns, and the road ahead with the new Trump administration. During the campaign, then-candidate Donald J. Trump cited his daughter’s advice in advocating for equal pay for equal work.

“We’re talking about this in real time,” Keyser said. “We don’t actually know what is going to happen or be rolled out” with the U.S. Equal Opportunity Commission and existing laws in this area. She added: “This is certainly a hot topic, and it will be interesting to see where it morphs in this administration and administrations to come.”

The panelists – one represents employers, one employees or plaintiffs, and one both – agreed that the landscape of laws throughout the states pose issues because each state is different and the federal bar for pay disparity is high. In Florida, for instance, the state equal pay laws are weak at best, they said. In four states, and particularly in California and Massachusetts, the laws are much stronger for plaintiffs to bring a case of pay disparity.

Lindsay Wagner of Scott Wagner and Associates, which has offices in Miami and Los Angeles, described a new California law as a “game changer.” The law allows for statewide comparison of jobs, expands the comparison pools for men and women, and provides a more limited ability for employers to defend their actions. Housekeepers (largely women) and janitors (largely men), for example, now serve in basically similar jobs even though there are gender differences.

“It is more onerous on the employer to establish why there is such a pay differential,” Wagner said.

One of the major obstacles in closing the pay gap is the difficulty of comparing jobs. One employee might have gone to a school that has a better reputation than another; another might have more seniority. These are factors that are not easy to sort through in court.

But, Keyser pointed out, “doing things ad hoc gets employers into trouble” and can lead to bias claims.

Another challenge is that some state secrecy laws prevent employees from not only obtaining pay records of colleagues but muzzle any discussion of pay in the workplace. The panelists pointed to the situation in 13 states where it is unlawful to discuss personal pay with colleagues.

Diane Perez, who represents both employers and employees in Miami, said while it might make sense to bar companies from having to produce colleagues’ pay, employees should not be banned from talking about pay in the workplace. She advocated employers eliminating those legal gags and to be “more conscious” of their actions, particularly when it comes to “part time and flex-time employees to make sure there is no disparity in pay”

The panel was moderated by Shayda Le of Barran Liebman in Portland, Ore., and was sponsored by the ABA Young Lawyers Division.