By Some Measures, the Gender Wage Gap Is Actually Getting Worse

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Most experts agree that wage disparity is not improving for women — and, according to the Economic Policy Institute, it may only get worse going into 2019. Women may be paid up to 45% less than men for the same job in certain fields, a Hired report showed, and women's actual earnings may only be 49% of men's earnings once measured by total earnings "across the most recent 15 years for all workers who worked in at least one year," a Georgetown study noted. At the current rate, pay equity won't be reached for another 108 years, the World Economic Forum revealed in its gender gap index at the end of 2018.

A lack of access to jobs at the top of the company continues to drive the gender pay gap, according to research from PayScale. The new study, The State of the Gender Pay Gap in 2019, offers insight into where the system breaks down for women and people of color — and data suggests that an "opportunity gap" may be the primary reason wage parity does not yet exist. 

Women face more barriers in the workplace that keep them in lower paid, lower level “individual contributor positions” as opposed to their male counterparts at the executive and management levels, the research noted. When women of color are factored into the equation, additional biases and barriers block their ability to reach parity.

Although modestly improved by 1% over the previous year, women still earn only 79 cents for every dollar earned by men. This data measures median salary without regard to job type, location, seniority, years of experience or industry. The controlled pay gap is only 98 cents to every dollar — but that stat does not paint the whole picture, PayScale said, as women of color consistently earn less than white men.

Car Dealership Pays Over $2 Million To Settle Same-Sex Sexual Harassment Suit

Pitre Inc., an Albuquerque car dealership, has agreed to settle a same-sex sexual harassment and retaliation lawsuit filed on behalf of over 50 workers for over $2 million dollars. In the lawsuit, the employees charged a former lot manager, under the direction of the dealership's general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. They also alleged that the manager retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of the Company raised such concern that a U.S. District Court judge granted a preliminary injunction  prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants. In case you were wondering -- Yes, such an injunction is pretty unusual.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, which includes harassment of individuals of the same sex. When an employer disciplines, terminates, or takes other punitive measures against an employee for objecting to workplace discrimination, the employer further violates Title VII's anti-retaliation provision.

Here is a copy of the press release.

Allegations Of Pay Discrimination By Texas Attorney General Shine Light On Systemic Problem Of Gender-Based Wage Disparity

Equal pay for women is in the spotlight of the Texas governor's race, and figures from the Texas Attorney General's office show most female assistant attorneys general make less on average than do men in the same job classification. The San Antonio Express News has published an analysis of the agency's pay statistics and found that of the top 20 highest-paid employees at the agency, just three are women. Of the 100 top positions, only 37 are held by women. The analysis indicates that the disparity cannot be accounted for simply by seeking a correlation between experience and pay among the assistant attorneys general.

Does this necessarily mean that the Attorney General is purposely discriminating against female lawyers in the agency? Possibly not. But it doesn served to shine a light on a  problem the affects employers all across the country - that being systemic gender discrimination against women based on old ways of thinking about gender in the workplace.

What is the Equal Pay Act?

In 1963, Congress passed the Equal Pay Act ("EPA" or the "Act") as an amendment to the Fair Labor Standards Act, to "prohibit discrimination on account of sex in the payment of wages by employers." Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of "concern for the weaker bargaining position of women" to provide a remedy to discriminatory wage structures that reflect "an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman." It should be noted, however, that the EPA protects both men and women.

The EPA prohibits "employer[s] ... [from] discriminat[ing] … on the basis of sex by paying wages to employees [...] at a rate less than the rate [paid] to employees of the opposite sex [...] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]" To establish a case under the EPA, an employee must show that:

1. Different wages are paid to employees of the opposite sex;

2. The employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and

3. The jobs are performed under similar working conditions.

The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility, and that are performed under similar working conditions.

It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements noted above, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.

What to do if you believe you have been paid less due to your sex / gender:

An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.

Important: If you believe that you are or have been discriminated against on the basis of your gender, you should consult an employment attorney immediately. The EPA contains a rigid two-year look back period. Any claim based on wages beyond that period may be lost so it is important that you file as soon as possible.

Read More: Female Lawyers in Texas AG's Office See Bigger Pay Gap Than in California

New Direction In Gender Discrimination - Sexual Stereotypes

Mike Fox over at the Employer's Lawyer Blog has a link to another in an interesting line of cases that he has been following in the Sixth Circuit. This new line of cases has upheld jury verdicts for plaintiffs alleging gender discrimination based on sexual stereotyping. The most recent case is Barnes v. City of Cincinnati (6th Cir. 3/22/05).

The Barnes decision affirms a jury verdict where the plaintiff was awarded $320,511 (plus over $500,000 in attorneys fees.) Fox notes that in addition to removing any doubt that gender stereotyping is a viable cause of action under Title VII, at least in the 6th Circuit, the Court also approved the following mixed motive jury instruction:"Your verdict will be for plaintiff if you find that plaintiff demonstrated by a preponderance of the evidence that plaintiff's failure to conform to sex stereotypes was a motivating factor in defendant's decision to demote plaintiff, even if other factors . . . also motivated defendant's decision. However, if you find that defendant's treatment of plaintiff was motivated by both plaintiff's failure to conform to sex stereotypes and lawful reasons, you must decide whether plaintiff is entitled to damages. Plaintiff is entitled to damages unless defendant proves by a preponderance of the evidence that defendant would have demoted plaintiff even if plaintiff's failure to conform to sex stereotypes had played no role in the decision. Remember that plaintiff is not obligated to show that defendant's legitimate reasons played no role in the decision to demote plaintiff, nor does plaintiff need to show that the prohibited factor was the sole or principal reason or the true reason."Ouch! If I am representing a defendant, this is not the instruction I want the judge to give to the jury. However, with the exception of the "sex stereotypes" issue (that has yet to migrate out of the Sixth Circuit) this instruction certainly is a correct statement of the law. So far these cases have been limited to fringe fact patterns involving transsexual policemen, etc. However, it isn't hard to see how the same theory could be used with employers that maintain a, shall we say, overly macho work environment and have trouble dealing with male employees considered to be too effeminate or female employees that are too "butch".

Wal-Mart vs. Class Actions

Corporate America could find it a whole lot easier to fight off employment class actions if Wal-Mart Stores Inc. prevails in a sex discrimination case to be heard soon by the U.S. Ninth Circuit Court of Appeals. Indeed, a Wal-Mart victory could tilt the playing field for virtually all of these kinds of suits, which have plagued Boeing, Coca-Cola, and dozens of other large employers over the years. Wal-Mart's ambitious legal strategy strikes at the heart of what it means to file a class action. The company maintains that its constitutional rights would be violated if the court allows a suit to go forward involving up to 1.5 million of the retailing giant's current and former female employees. Because such a case would deprive the company of its rights to defend itself against each woman's claim, it argues, the courts should allow suits only on a store-by-store basis. If the Ninth Circuit agrees and strikes down the multistate action certified by a lower court, it would likely kill the largest employment class action in U.S. history. More broadly, it would open wide the door for all large companies to make similar arguments. A victory for Wal-Mart might mean that plaintiffs can't bring nationwide class actions anymore and that they might have to do them locally or regionally. Here is a link to the story.