Attempts to address gender bias and pay inequity are generating new state laws and revised corporate policies, but are also producing a plethora of lawsuits in a variety of professions, including the legal world.
A growing number of state laws now outlaw retaliation against employees if they discuss their pay with coworkers. Lack of “pay transparency” is believed to worsen pay inequity because underpaid workers do not know what other employees doing substantially similar work are earning. Also, a few states, most recently California, now forbid job applicants from being forced to reveal to their potential employers their salary history, a practice that can perpetuate pay inequities because it can depress starting salaries for underpaid workers.
In the legal profession, litigation involving prominent law firms is attracting the attention of lawyers nationwide as women partners, associates and staff allege gender bias and unequal pay, raising complicated legal questions.
Recent litigation has involved, among other law firms, LeClairRyan, Jones Day, and Winston & Strawn. Winston & Strawn is fighting to compel former partner Constance Ramos, who sued alleging discrimination and anti-fair-pay practice, to go through arbitration. It has appealed to the Supreme Court, challenging a 2018 California Court of Appeals decision that ruled in favor of Ramos. The Supreme Court is expected to decide in its next term whether to take the case.
But, like the legal issue involving arbitration, gender bias lawsuits can raise complicated legal issues. In a gender and pay discrimination case involving Jones Day, for example, a D.C. U.S. District Court judge has denied the request of several plaintiffs, who asserted they feared retaliation, to remain anonymous.
These “Jane Doe” cases have stiff legal standards for allowing those cases to go forward on that basis. Courts permit anonymous plaintiffs only in “exceptional cases,” warned Lori Andrus of San Francisco-based Andrus Anderson LLP at a recent panel discussion on pay equity sponsored the ABA Civil Rights and Social Justice Section and San Francisco-based Equal Rights Advocates.
Most gender pay and bias lawsuits are eventually settled. But corporate culture in some organizations– such as automatic assumptions that women are less valuable than men doing substantially similar work -- can continue to perpetuate pay inequities. According to Fred W. Alvarez of San Francisco-based Coblentz Patch Duffy & Bass, changing corporate culture could include hiring independent monitors, gathering clear data on pay practices throughout the organization, and establishing mechanisms for resolving pay disputes.
- ABA Journal: Female lawyers are working for income fairness by suing their firms
- ABA Journal: Former LeClairRyan partner who sued for gender bias asks court to confirm $1M arbitration award
- ABA Journal: Jones Day says gender bias lawsuit painted 'distorted picture'
- ABA Journal: Winston & Strawn: Battle unfolds in SCOTUS briefs
- ABA Section on Civil Rights and Social Justice
- ABA 2019 Annual Meeting Resolution 106 on equal compensation
- ABA 2019 Annual Meeting Resolution 115B on pay discrimination
- ABA Gender Equity Task Force publications