Fair Pay Amid Today's Sexual Harassment Deluge

When two female comedians ran out of the room rather than endure Louis CK’s self-indulgent naughty nonsense, his manager told them to keep their mouths shut.  Funny, since Louis CK’s comedic genius often springs from telling stories that no one else talks about.  But they didn’t shut up.  I guess they decided they didn’t have to put up with it.

After I passed the California bar, I took a contract job with a small San Francisco firm, working on a class action wrongful termination.  A few months later, the firm interviewed for a second contract attorney to help with the increasing number of plaintiffs.  After one candidate left, I heard one partner crowing to the other: “this guy went to Duke (not to one-up, but I went to Dartmouth) and he’s willing to work for only $50 an hour (my hourly was $35).”

Hopping mad, I stormed into the office and asked why they offered the new guy more money.  Explanation: he spoke fluent German and in fact had a Ph.D in German literature.  Of course!  The ability to read Goethe in the original gave him a critical edge in preparing an employment action for trial in California.  So I shut up and trained this Siddhartha scholar to do the same thing as me.

Flash forward twenty years.  Last week a young woman signed a representation agreement with Louderback Law Group to file a complaint under the California Fair Pay Act.  At her former firm, she trained a new guy how to do her job.  After the firm canned her, she got wind of the fact that his salary exceeded hers by $100K.  Unlike the younger, quieter version of me, she won’t shut up.  And she knows the law is on her side.

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On October 7, 2015, Governor Jerry Brown signed the strictest equal pay act in the United States.  California Labor Code section 1197.5 prohibits an employer from paying women less than men for substantially similar work, when viewed as a composite of skill, effort and responsibility and performed under similar working conditions (barring certain specific exceptions),  even if the job titles are different or they work in different offices under the same employer. 

The employer has defenses available, of course.  Permitted difference in pay may be based on a seniority system, a merit system or a system that measures earnings by quantity or quality of production. But a bona fide factor other than sex will apply only if it is job related with respect to the position in question and is consistent with a “business necessity.”  In other words, a German literature degree, in most cases, won’t get the employer off the hook.

More and more women are deciding not to shut up and put up these days.  And thanks to Governor Brown, women seeking justice for being paid less than their male counterparts can also recover retroactive pay discrepancies, interest, costs and reasonable attorney fees.  It will take both men and women across society, as well as some necessary legal action, to change the culture of treating women as lesser than.  However, with the help of the Fair Pay Act and the tidal wave of women coming out against the behavior of many notable men across society, ultimately changing the dynamics of male entitlement going forward seems like a reality, finally. 

-Lynn Hollenbeck, Associate Attorney LLG