Mind the Gender Pay Gap

For decades, female employees and their male counterparts have been compensated very differently for the same senior positions. Getting paid less for equal work isn’t exactly a news flash. What is: Updates in state and federal laws have made it easier to bring lawsuits, the number of women coming forward to seek gender equality is on the rise, and there’s optimism that some high-profile cases may actually create change.

“Ultimately, that’s the hope that with these high-profile cases being brought and big judgments happening—it stops the widespread problem of unequal pay,” says John Mullan, a plaintiff’s attorney at the employment firm Rudy, Exelrod, Zieff & Lowe in San Francisco, “As this becomes more and more in the public consciousness, there will be more of a push for accountability.”

Equal Pay Class Actions

Along with James Finberg at Altshuler Berzon law firm, Mullan worked on an equal pay class action case against Oracle on behalf of three female employees: Rong Jewett, Sophy Wang, and Xian Murray. Finberg led a similar suit against Google. Other recent examples include Katie Moussouris’ class action against Microsoft, Tina Huang’s class action against X (formerly Twitter), and, ironically, a suit against the company behind Fearless Girl.

“With some of the changes in the last couple of years that have made it easier to move forward, I think we’re probably going to see even more of these gender gap cases,” Mullan says.

EEOC Equal Pay Complaints

Despite the laws dictated by the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, pay discrimination lawsuits have historically been hard to win (see Ledbetter v. Goodyear Tire & Rubber Co. and Wal-Mart Stores, Inc. v. Dukes, for example). The U.S. Equal Employment Opportunity Commission (EEOC) received 1,012 equal wage complaints in 2023, a number that has remained roughly constant for years. Another number that has remained nearly the same: nearly 60 percent were found to have “no reasonable cause” for action by the EEOC.

Proving Pay Disparity

“You need to have a fairly good basis for believing there’s a pay disparity between the female worker and their male colleagues doing substantially similar work. That’s California’s standard—substantially similar, not equal, which was the old standard. That was tricky in the past,” Mullan explains. “But a couple of things have happened.”

For one thing, employers had pay secrecy on their side until recently, but states like California have passed legal protections, so employers cannot prevent such discussions around wage gap data. “That has been the tricky part of these cases: People understanding that they were being paid less. For various reasons, people don’t talk about their wages. There used to be a kind of cultural taboo,” Mullan says. “But the more this becomes a public issue, the more people realize why it’s in their interest to have transparency on their compensation.”

Pay Discrimination and Sexual Harassment Claims

Mullan notes that the lines between pay discrimination and sexual harassment issues have become blurred in recent years. As people come forward with allegations, it opens the door for others who were afraid to do so.

“Whenever someone comes to us with a workplace discrimination issue, there’s always fear of retaliation. In other industries, that might be limited to continuing to work in that environment, but in Silicon Valley and Hollywood, people who step forward fear broader retaliation—that they’re a troublemaker and won’t be hired throughout the entire industry,” Mullan says.

Find Experienced Legal Help

One tip for employees who suspect unequal pay is to openly discuss pay with coworkers. Not doing so only gives your employer more power. Contact a reputable employment attorney and alert the EEOC if you suspect discrimination, either personally or systemically. Once a disparity in pay is established by a plaintiff in one of these suits, the burden of proof shifts to the employer, which must prove the entire disparity is due to seniority, merit, quantity/quality of output, or any factor other than gender. 

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