August 09, 2019

What’s being done to address pay inequity in legal profession?

Achieving pay equity between men and women in the workplace is a complex process that involves effective training, clear metrics and changing the internal culture of an organization, according to a panel of experts at the 2019 American Bar Association Annual Meeting in San Francisco.

“Equal pay is just an issue that women are confronting in every single industry in every single company in the United States,” said panelist Lori Andrus of San Francisco-based Andrus Anderson LLP.

The panel discussion, sponsored by the Civil Rights and Social Justice Section and San Francisco-based Equal Rights Advocates, was part of the Annual Meeting’s CLE in the City series, featuring a variety of legal topic trainings held in locales throughout San Francisco.

Panelists laid out the litigation, court decisions and legislation increasingly at play.

Panelist Jessica R.L. James of Sacramento-based Orrick, Herrington & Sutcliffe LLP, which represents employers in employment cases, discussed the difference between the “pay gap” and “pay equity.”  

The “pay gap,” she said, is when men earn more than women regardless of job, role or level - an even more severe problem among women of color. That is not necessarily unlawful, she said.

“Pay equity” – the focus of the CLE – arises when women and men are paid unequally for doing substantially the same work. That is unlawful, and “that’s where the litigation comes in,” James said.

She explored the “prior salary” controversy, which is when applicants are asked to reveal what they earned at their previous job. The longstanding practice can perpetuate pay inequities because women are apt to be structurally underpaid. James pointed to a new California law that forbids companies from engaging in this practice. To set starting pay legally, she said, employers can ask applications about their salary “expectations,” set a salary range for the job and look at market data to assess what competitors are paying for the same job.

Andrus looked at the growing number of high-profile gender discrimination lawsuits. While some women try to file those cases anonymously – so-called “Jane Doe” cases – there are stiff legal standards for allowing those cases to go forward on that basis, she said.

But what about the vast majority of settled lawsuits? Panelist Fred Alvarez of San Francisco-based Coblentz Patch Duffy & Bass LLP focused on the challenges around consent decrees that require “programmatic relief” – fixing the problem structurally.

One problem is often the culture of an organization that allows inequities to fester, Alvarez said. Fixes may include mechanisms for monitoring – including external monitors – dispute resolution and training, he said. 

Moderator Jessica Stender, co-chair of the Rights of Women committee under the ABA Civil Rights & Social Justice Section and senior counsel for Workplace Justice and Public Policy at San Francisco-based Equal Rights Advocates, traced legislative trends.

A growing number of states are requiring pay transparency, including the 18 states and the District of Columbia that contain pay secrecy prohibitions. Advocates are pressing forward on the federal front. Stender said the Paycheck Fairness Act, which would limit use of salary history and prohibit retaliation against workers who discuss their salaries among each other, has been introduced every year since 1993, with no success so far.