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Pay Equity Matters: Mind the Gap

Former Pinterest Chief Operating Officer and top ranking female executive Françoise Brougher just filed a 17-page complaint in San Francisco Superior Court against Pinterest alleging a toxic work environment that allowed female executives to be excluded and silenced, which she claims led to her own termination. The August 11 complaint alleges claims of gender discrimination, retaliation, and wrongful termination in violation of the Fair Employment and Housing Act (FEHA) and the California Labor Code.

The Women’s National Basketball Association and the union representing its players recently agreed to tentative terms of a new collective bargaining agreement, which will revamp players’ salary and benefits this season and apply through 2027. While the tentative terms of the CBA leave room for improvement when compared to the opportunities for wages and benefits of NBA players, the components of the new compensation structure for WNBA players announced on January 14 demonstrates the league’s acknowledgement of the needs of working mothers. It also displays encouraging progress in the fight for pay equity.

A federal appeals court just ruled that workers don’t need to clear a heightened legal standard in order to pursue pay equity claims, setting the stage for a possible increase in the number of lawsuits seeking recovery for alleged unfair wages in 2020 and beyond. The analysis applied by the 2nd Circuit Court of Appeals’ December 6 decision in Lenzi v. Systemax, Inc. could be applied by other courts across the country, creating a new outlet for workers to claim pay bias.

In an announcement sure to please federal contractors, the OFCCP announced Friday that it would not use any of the pay data gathered by the EEOC in this year’s expanded collection efforts for enforcement purposes. The November 22 release is just the latest example of the federal government’s taking active steps to diminish the pay data collection requirements forced on the administration following a surprise court ruling in March.

Employers may have to prepare for an entirely new pay data reporting requirement to be revealed in the new year, but you can expect that any such proposal would not be as cumbersome or invasive as the current system. The Equal Employment Opportunity Commission (EEOC) announced yesterday during the release of the Fall Regulatory Agenda that it is considering initiating a rulemaking process that “may include a new reporting requirement by which employers would submit pay data or related information as reasonable, necessary, or appropriate for the enforcement and the Equal Pay Act.” But all signals point to this next version of pay data collection – which could be revealed in September 2020 – being more palatable to employers.

The Pennsylvania House of Representatives recently introduced a bill that would amend the commonwealth’s Equal Pay Law by requiring employers to provide pay transparency to applicants and employees alike, bringing Pennsylvania to the forefront of the pay equity discussion. While the measure has a long way before becoming law, it is well worth keeping an eye on this development – not only those with business in Pennsylvania, but those across the country who may find that their local jurisdiction might one day follow its lead.

The national conversation around issues of gender equality and the demands for pay equity is driving rapid changes in the law. Many states – including New York, California, Massachusetts, Oregon and New Jersey – have passed robust legislation in an attempt to close the pay gap between men and women in the workplace. At the same time, employers are grappling with an uptick in claims alleging sexual harassment and discrimination sparked by the #metoo movement.

A California federal judge today granted the U.S. Women’s National Team an early victory in their pay equity battle against the U.S. Soccer Federation (the Federation), granting class certification to a group of players who want to collectively assert their gender-related legal claims. While Judge Gary Klausner’s order is just the first of several hurdles the women’s team will have to overcome in order to successfully challenge the pay structure that they allege favor the men’s team, it is an important milestone in any class action.

A federal judge yesterday ordered the EEOC to continue its pay data collection efforts and complete its efforts into next year, ruling that an insufficient number of employers have submitted their revised EEO-1 reports. Although the agency tried to shut down the pay data collection process by pointing out that over 80% of eligible employers had turned in their 2017 and 2018 compensation information, the court said that more could be done and ordered the agency to keep at it and complete its work by January 31, 2020.

Pay equity concerns in Hollywood are not limited to famous actresses (such as Michelle Williams) or comediennes (such as Mo’Nique). As reported this week by the Hollywood Reporter, the co-writer of smash hit “Crazy Rich Asians” rejected the chance to write two sequels to the movie after learning that she was slated to be paid about one-eighth of what her male co-writer would earn. While the dispute arose late last year and was just recently revealed, it aptly demonstrates that gender pay disparities still exist even in prominent positions. This story should be another reminder for your company to ensure your act is cleaned up before you pay the price.

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