We have read the stories and statistics about the gender wage gap, and that despite the many strides women have made in the workforce, women only make 77 cents for every dollar a man makes (and the gap is even larger among women of color and single mothers). Unfortunately, there isn’t a quick fix to this issue, but we had a very enlightening conversation with employment attorney Christopher Davis of The Law office of Christopher Q. Davis to find out what you can do if you think you aren’t being paid fairly – with or without the assistance of an attorney.
TSR: In 1963 women were earning 59 cents for every dollar a man made and President Kennedy signed the Equal Pay Act. 5 years ago today, in 2009, President Obama signed the Equal Pay for Equal Work Bill (the Lilly Ledbetter Fair Pay Restoration Act). What do these two bills really amount to for working women?
Christopher Davis: The issue of equal pay is one that we, as employment attorneys, see often. Unequal pay is endemic, you see it in every industry, and every person that comes through our door has a story.
The 1963 bill establishes, that if you have same qualifications or better and were not getting compensated appropriately, you could get damages for the differences. There were problems with enforceability and the statute of limitations, so if you have an ongoing pay-gap, the issue was when the clock started ticking. So Lilly Ledbetter brought a case against Goodyear and she lost, in appeal, because the law said the employer’s original discriminatory pay decision had to have occurred within 180 days of filing the suit.
Less than two years after the Ledbetter decision, the House and Senate passed the Lilly Ledbetter Fair Pay Act of 2009. So with every discriminatory pay check the statute of limitations starts over, so it becomes easier to bring these charges.
These two bills are comprehensive with regards to unequal pay. But the issue is not only a legal one, it is also one one of workforce culture and intimidation – people who raise these issues internally are usually marginalized are branded as being trouble makers and not team players, even though they are actually team players that simply want to be compensated like everyone else on the team.
TSR: What is the statute of limitations for gender discrimination suits?
Christopher Davis: Under the federal law it’s two years from the last offending pay check and under New York State law, (where this interview was conducted) it’s six years from the last offending pay check.
So what that means is, you have 180 days after an act of discrimination to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in order to preserve your right to bring a Title VII civil suit in federal court.
Also, in states that have their own laws protecting discrimination, the EEOC may have a special workshare arrangement which allows the employee to “dual file” a charge of discrimination with both the federal and state government in a single filing. Those claimants filing in workshare arrangement states – and NY is one of them – will be permitted to file under the longer state deadline, if one exists. In New York, the deadline is extended to 300 days under their arrangement. However, under the NY and Federal equal pay statutes, there is no requirement that a person file with the EEOC or any administrative agency before going to court, but there is a statute of limitations of two years.
So if you wait longer, you will not be able to address the issue legally and recover damages and lost wages.
TSR: Many companies have policies saying that their employees are not allowed to discuss their compensation with one another, so how can a woman know if she is getting paid fairly or not?
Christopher Davis: You have identified a huge problem, which is evidence gathering. Most of my clients that have the intent to bring gender discrimination or equal pay claims against their employer will have to play investigator. It’s stressful, and they have to be willing to push the boundaries because many companies have these policies which are absolutely intended to prevent this type information from being exchanged.
A lot of times my clients will have snooped through confidential files or obtained information off of servers. I don’t recommend it, it’s not suggested, you can get caught and get fired, and if you removed compensation information from the work place, you can get into rather serious trouble for that. There are no criminal violations, but it could damage your lawsuit.
It is not uncommon for the company being sued to ask for the pay information in discovery from the plaintiff, and if it was gathered in a way that is in violation of privacy, for the company to then in turn, counter suit the plaintiff.
TSR: So then how do you actually figure out if your suspicions of not being paid fairly are validated?
Christopher Davis: If the information exists in email, it’s easier to print and remove emails, because there is a low privacy expectation. The law actually says that the plaintiff has a right to gather this info even if it violates a low level confidentially expectation. And we all know these types of conversations do also take place at the watercolor or over drinks on occasion as well.
It’s not unlike probable cause, you need to allege that violations have taken place, once you are in civil discovery you can actually obtain this information, but it is not easy to get in the first place – so there is a circular issue.
I think companies are always going to maintain some legitimacy in keeping compensation information private, the issue then becomes, does a plaintiff’s rights overcome that privacy? But even industries with transparency – we still see pay disparity based on gender.
TSR: Legal representation can be very costly and in some cases essentially cancel out any settlement a woman might obtain in a law suit – no?
Christopher Davis: Most employment lawyers will give free screenings, and assess if you have a case or not. And if you do have a case, most employment lawyers will take cases on a contingency basis, if they feel like there are principals and ethics that should be upheld, especially if you have a very strong case. You could also get attorney fees covered as part of the settlement if the case goes to trial. There are ways in which to incentivize plans for us to bring these cases to light, the numbers add up, and they are compounded year to year…and over the course of time you could have a large amount of money that is owed to you.
If a woman doesn’t have the ability to hire a private attorney, she can go through the Equal Employment Opportunity Commission or through their state rights division, and handle it themselves. These agencies will then appoint someone to handle the case without cost. Sometimes it helps to have a private lawyer draft the initial charging documents and then have the EEOC pursue these violations themselves – then the plaintiff would get the full settlement. Honestly, the issue with this is that it could take a while and the EEOC can only take on a relatively small amount of cases.
But the other option is seeking pro-bono representation. Many large law firms have have strong commitments to this type of work and have pro-bono committees that assess cases. You can get high quality representation from these law firms, and they will do it for free. It’s a resource that is not used very often, and you can just call a firm that does this type of work, and ask if they will take a pro bono case because you can’t afford an attorney.
But, I do see a lot of women walk away from a high 6 figure or even 7 figure settlement because of the stigma attached, which can be the real deterrent.
TSR: Many women fear losing their jobs altogether if they question management – which can be catastrophic. If the company does not respond well to the conversation, what are an employees options?
Christopher Davis: What I’ve found is that if the pay disparity is high enough and there is something wrong with the culture, there is already animosity, and there is no love lost when a woman decides to call attention to the problem.
If a woman is not particularly happy with management and she has anecdotal evidence about sexism and women not getting as many opportunities as men, then the truth is, at that point, nine times out of ten, women are at the end of their rope with their employer – so there is not as much to lose coming forward. And a lot of times the companies are not surprised.
It’s best when women are advocates for themselves earlier, before their employers see this coming and do something like giving poor performance reviews – which is something the company could then point to as reason for the disparity in pay. The problem is, many women are not in a position to challenge their supervisors.
An employee needs to know that if you raise these issues with your employer, there are separate retaliation protections – but the issue is really about overcoming the cultural issues around bringing up a law suit around not getting paid fairly. Many women want to avoid what they see as a reputation hit: you get a lawyer, you get a settlement and then you leave – so are concerned it appears like you are just trying to get a pay day.
President Obama tried to raise it as a campaign issues, but people really don’t vote on the wage gap. I think the issue is one of enforcement and attention, and it gets better incrementally. It’s very slow. It just has to do with the way people perceive these law suits.
The interesting reality is that almost everyone, at some point in their lives will fall into a protected category, and they themselves will need protection at work. Women and men, run up against this a lot.
TSR: Any suggestions for navigating the sometimes mine-filled territory of calling your bosses out while continuing to work for the company?
Christopher Davis: I would say the first step is to gather information informally. Even if you call a lawyer they will ask, “What is your certainty?” If you decide you are going to enforce the law, you have to commit to making that choice and to letting the pieces fall where they may – as difficult as that may be. You need to confirm your suspicions, and do it in a way that doesn’t involve serious breaches of company privacy policies.
After you have do that, I would call a lawyer. You don’t need to have pay stub in your hand, you just need a good faith belief that you aren’t being paid fairly based on your gender.
TSR: In your opinion, is the issue of the gender pay gap an issue with needing more legislation, needing the current legislation to be more effectively enforced, or is it a cultural issue that we all need to work on to correct?
Christopher Davis: I think the cultural issue is one that needs to be overcome. There is all this talk about leaning in, and one company actually mentioned this in their statement responding to my client. When I asked my client what she thought about this, she said, “I leaned in and I got fired” but there was a lot of backhanded maneuvering because of relationships with other men, and once that started happening my client became furious and she was never empowered. It really angered her that once she was drowning, no one was coming to her aid and the company was just in defense mode. And sometimes, one of the greatest services I can provide is validating to a client that she was treated unfairly, just saying, “Wow, that was bad,” helps someone feel better about how they were treated.
This is an excerpt of a conversation between Christopher Davis and ShriverReport.org
Christopher Davis is an experienced employment attorney and trial lawyer specializing in the areas of employment law, class action litigation, civil rights and criminal defense. He is a partner in the firm and heads the firm’s Brooklyn-based Employment and Workplace Justice Practice, specializing in all forms of employment and labor disputes ranging from severance and pre-litigation settlement negotiations to trials and nationwide class actions. His former clients range from busboys to CEOs and span all industries, including many within the financial industry.