January 11, 2017
Every year we host an Ask for More Holiday Lunch for women executives focusing on women in leadership roles and how to continue paving the way to gender equity. This year, while covering the myriad ways in which discrimination manifests itself in the workplace, we highlighted the federal and state laws currently in place that protect against discrimination and seek to end the gender pay disparity.
Gender discrimination occurs in a variety of ways, often beginning with the job interview process and continuing throughout the employment period. These examples might sound familiar:
- Interview questions (e.g. “Do you have/plan on having children?”)
- Positional bias and gender stereotyping (e.g. a receptionist is assumed to be female, a tax attorney is assumed to be male)
- Unequal pay
- Micro-inequities (e.g. exclusion from meetings, undermining a woman’s accomplishments, diminishing responsibilities, performance reviews focused on personality instead of performance)
- De facto demotion
- Failure to promote
- Termination (e.g. firing a woman for asking for equal treatment, not firing a man who was accused of sexual harassment)
Sadly, as a woman, you or someone close to you will likely experience some form of discrimination in the workplace. For that reason, it’s important to know which existing laws protect against discrimination, as well as what pending legislation, if enacted, could be used to combat discrimination in the future.
On the federal level, the Equal Pay Act requires “equal pay for equal work.” But if “equal” is defined as “identical,” employers may avoid liability by claiming pay disparity is justified because one job is not completely “identical” to another. To combat this, certain states, like New York and California, have augmented the protections of the Equal Pay Act with laws that more broadly define “equal,” to cover jobs that have substantially similar duties and responsibilities. Under the New York State Achieve Pay Equity Act, effective January 19, 2016, employers must show that any pay difference for equal work is based on a “bona fide factor other than sex, such as education, training and experience,” and must be job-related and consistent with “business necessity.” California’s 2015 Fair Pay Act requires employers to pay men and women equally for “substantially similar work,” defined in that Act as work of “a composite of skill, effort, and responsibility, and performed under similar working conditions.” Massachusetts is also a leader in the equal pay arena. Last August, the state passed the Act to Establish Pay Equity, which provides a “comparable work” stipulation for equal pay with similar conditions to California’s requirement of “substantially similar work.”
Another tool being used by states to target the wage gap is pay transparency. With the Act to Establish Pay Equity, Massachusetts became the first state to make it illegal for employers to ask for a job applicant’s wage history. Prior to that, in 2015, New York Governor Andrew Cuomo issued the Pay Transparency Executive Order, which prohibits employers from discriminating against employees who ask about or discuss their wages or those of their coworkers and further limits exceptions for gender pay differences under New York Labor Law 194. Pay transparency not only empowers women to ask for wages they deserve, but it also exposes flaws in the pay structure of companies that wouldn’t otherwise examine them. The hope is that at least in some cases, companies will take corrective action to ensure gender pay equity.
Paid Family Leave
This overview would not be complete without mentioning the elephant in the room – pregnancy. Only women can do it, and only women get punished for it, including by being denied promotions, salary increases and bonuses. It’s shocking to think there is no paid leave law in the United States. While the Family and Medical Leave Act mandates up to 12 weeks of leave, it is unpaid, and many women are pressured by employers to not even take all of the time they are entitled to take. Thankfully, there is some hope on the horizon, and again, New York is a leader in this arena. New York State recently passed comprehensive family leave legislation that will go into effect in 2018 and by 2021 will make employees eligible for up to 12 weeks of at least partially paid family leave.
We hope this summary is helpful to you. Please don’t hesitate to contact us with any questions on these or any other employment law questions.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. Reavis Parent Lehrer Partner Nicole Page would be pleased to consider providing additional details or advice about specific situations. Ms. Page practices in the areas entertainment, intellectual property, and employment law.