Articles Posted in Equal Pay

Edgar M. Rivera, Esq.

On November 21, 2017, in Martinez v. Davis Polk & Wardwell LLP, the Second Circuit affirmed the district court’s dismissal of a race discrimination case at summary judgment. Plaintiff Eunice Martinez, a web editor at the law firm Davis Polk & Wardwell LLP (“Davis Polk”), claimed that Davis Polk—despite Martinez’s repeated requests to be promoted to a management-level position—awarded her lower salary raises and failed to promote her into a managerial position because she is Hispanic. The district court concluded that Martinez failed to establish a prima facie case for either claim. Second Circuit Judges Rosemary S. Pooler, Debra Ann Livingston, and Denny Chin affirmed the decision.

To prove pay discrimination, Martinez had to satisfy the “demanding” standard of the equal work inquiry, which requires evidence that the jobs compared are “substantially equal.” Showing that two positions are “substantially equal” is easier said than done, as even small differences in duties or responsibilities can suffice to show that two positions are not “substantially equal.” Here, Martinez conceded that she “holds a unique position and there is no point of comparison” for her particular job and testified during her deposition that she was not qualified to do the jobs of six of her proposed seven comparators. As a result, Martinez could not show that her comparators were “substantially equal” and therefore could not show that they did “equal work.”

Edgar M. Rivera, Esq.

On May 4, 2017, Mayor Bill de Blasio signed a law prohibiting employers from inquiring about a prospective employee’s salary history, which goes into effect on October 21, 2017. The Office of the Mayor hopes that preventing employers from asking questions during the hiring process about an applicant’s previous compensation—which is often used as a benchmark for a new employee’s starting pay—will end the “perpetuating cycle of suppressed wages” for minorities.

The new law prohibits an employer from asking about or using a job applicant’s compensation history to determine their salary during the hiring process, including the negotiation of a contract. An applicant’s salary history includes their current or prior wage, salary, benefits, or other compensation.  Employers are still allowed to discuss expectations about salary, benefits, and other compensation with a job applicant.  Further, if an applicant, voluntarily and without prompting, discloses their salary history to an employer, the employer may consider that information in determining the applicant’s salary, benefits and other compensation.

Harrison Paige and Lev Craig

On February 27, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed the lower court’s ruling in Kalu v. Florida Department of Children and Families, a gender discrimination suit brought under the Equal Pay Act (“EPA”). The Eleventh Circuit affirmed the district court’s summary judgment in favor of the defendant, a Florida state hospital, finding that plaintiffs—two female nurse practitioners at the hospital—had failed to show that a $20,000 disparity between their pay and a male nurse practitioner’s salary constituted unlawful gender discrimination in violation of the EPA.

Plaintiffs Patricia Kalu and Susan Linder-Wyatt worked as nurse practitioners at a hospital managed by the Florida Department of Children and Families. When plaintiffs discovered that they made nearly $20,000 less than Michael Peel, a male nurse practitioner with identical job responsibilities, they filed suit in the United States District Court for the Northern District of Florida, alleging that the pay disparity between female and male nurse practitioners violated the EPA. The district court granted summary judgment, finding that plaintiffs had failed to show that the hospital’s pay disparity was discriminatory, and plaintiffs appealed to the Eleventh Circuit.

Rose Asaf

Last Friday, we reported on Kerrie Campbell’s class action complaint against Chadbourne & Parke LLP.  Ms. Campbell, through her attorneys, Sanford Heisler, LLP, alleges that Chadbourne’s female partners “have been disparately underpaid, systematically shut out of Firm leadership, demoted, de-equitized and terminated.” Not all female partners in Chadbourne, however, agree with those allegations, which has prompted pushback against Ms. Campbell and Sanford Heisler, LLP.

In a letter addressed to David Sanford, a founding partner of Sanford Heisler, 14 female partners from Chadbourne expressed that Campbell’s complaint does not properly characterize their experiences with Chadbourne. In their attack, the women state that Sanford Heisler “did not make our voices heard…but rather have attempted to silence us.” The letter asserts that the complaint “makes a group of very accomplished, assertive and intelligent professional women look like they are victims unable to hold their own with their male colleagues.” The female partners also criticize Sanford Heisler for not reaching out to them before filing the suit.

Edgar M. Rivera, Esq.

On August 31, 2016, Kerrie Campbell—a seasoned trial lawyer and leading practitioner in the defamation and product disparagement, First Amendment rights and consumer product safety fields—filed a class action complaint in the Southern District of New York against Chadbourne & Parke LLP—an international firm of approximately 400 lawyers and tax advisors, including former New York Governor George Pataki, with over $285 million of annual revenue. Campbell claims that Chadbourne systematically discriminated against its female partners.

According to the complaint, in January 2014, Campbell joined Chadbourne as a lateral partner in the litigation department. Campbell brought in approximately 40 new matters for over 20 clients, generating over $5 million in total revenue for Chadbourne. Campbell’s productivity and revenue generation was consistent with the Chadbourne’s top performing male partner, yet her pay consistently was at the bottom ranks of male partners, who brought far less revenue to Chadbourne. Chadbourne opposed the gender-based pay and asked Chadbourne’s all-male five-member Management Committee, Managing Partner, and Head of the Litigation Department to address and rectify these issues. On February 19, 2016, Chadbourne’s Managing Partner, Andy Giaccia, and Head of the Litigation Department, Abbe Lowell, told Campbell that Campbell’s practice did not “fit” with the “strategic direction” of Chadbourne and that she must leave. To incentivize Campbell’s speedy ouster from Chadbourne, they slashed her pay.

Lev Craig

Last week, we reported on groundbreaking equal pay legislation that was recently passed in Massachusetts. Yesterday, the U.S. women’s soccer team played their last match of the 2016 Olympics, but are still competing for equal pay in an ongoing case against U.S. Soccer, the entity that manages and pays the U.S. women’s team.

Unlike other U.S. sports leagues, such as the NBA and the WNBA, whose men’s and women’s teams are controlled by separate organizations, the U.S. men’s and women’s soccer teams are both run by U.S. Soccer. However, the two teams are treated very differently, particularly in terms of their compensation, which has been an ongoing source of friction between U.S. Soccer and the the women’s team. In March, five players on the U.S. women’s soccer team filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that U.S. Soccer had discriminated against female players by paying them less than their male counterparts.

Lev Craig

Despite major societal advances in gender equality in the past several decades, pay disparities between men and women are still a pervasive problem in American workplaces. In 2014, the median earnings of women who worked full-time were 83 percent of those of their male counterparts, according to the Bureau of Labor Statistics. Last week, in an important step towards eliminating gender-based compensation inequities, Massachusetts enacted bipartisan legislation that has been called “one of the strongest equal pay bills in the nation.”

There are already several federal statutes in place that are intended to establish equal pay for employees of all genders: The Equal Pay Act of 1963 (“EPA”) prohibits employers from paying unequal wages to men and women who perform substantially equal jobs, and Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act forbid compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. However, the new Massachusetts law has notable differences from these federal statutes, including an entirely unique provision concerning an employer’s ability to ask about a prospective employee’s history of compensation.

Lucie Rivière

Today is International Women’s Day (“IWD”), an event globally observed every March 8 since 1909 by governments, non-governmental organizations, charity, corporations, academic institutions, women’s network, and the media. IWD celebrates the social, economic, cultural, and political achievements of women throughout history and calls people to keep fighting for gender parity around the world.

According to the International Labor Organization (“ILO”), IWD is an important reminder that women are still facing “enormous challenges … in finding and keeping decent jobs.” On March 7, 2016, the ILO published a report about gender equity in the workplace, examining data for 178 countries. The report concludes that inequality between women and men persists on a global scale. In fact, the employment gender gap has increased by only 0.6 percentage points since 1995, with an employment-to-population ratio of 46 percent for women and almost 72 percent for men in 2015. The report also highlights that women continue to work longer hours per day than men in both paid and unpaid work (such as cleaning, cooking, and caring for children or elderly). In both high and low income countries, on average, women carry out at least two and a half times more unpaid household and childcare work than men. What’s more, the report shows that over the last two decades, the significant progress made by women in education has not translated into comparable improvements in their positions.

Yarelyn Mena

In April 2015, the Equal Employment Opportunity Commission (EEOC) investigated allegations that approximately 1,000 female and minority New York City administrative managers earned less than their white, male counterparts and received fewer promotions. “Pay gap” problems have long plagued New York City; although former mayor Michael R. Bloomberg put New York City’s current salary and promotion policies in place, the EEOC believes that “structural and historical problems” have prolonged the pay gap for women and minorities long before Bloomberg’s time. The EEOC investigation covered a total of six years, from 2009 to the present.

The EEOC’s investigation found that female and minority employees’ “rate of pay is much less than [those of] their white male counterparts in similarly situated jobs and titles.” As such, the EEOC recommended that the City pay a total of $246 million in back wages and damages, as well as begin to develop solutions to prevent future discrimination. Should the City refuse to negotiate, the EEOC made clear that it will file a lawsuit.

Jennifer Melendez and Edgar M. Rivera, Esq.

On August 5, 2015, Netflix announced it would offer its employees one year of paid parental leave. The new policy allows parents to set their own schedules – taking leave as necessary – for the first year of their child’s life and gives them the option to return to work full or part-time. Netflix Chief Talent Officer, Tawni Cranz, stated:

The updated policy is intended to help the company retain valuable employees. We want employees to have the flexibility and confidence to balance the needs of their growing families without worrying about work or finances…We’ll just keep them normally, eliminating the headache of switching to state or disability pay.