My greatest Equal Pay idea ever!

By: Robin Shea

April 05, 2019

Instead of my annual equal pay rant, I'll be positive.

On April 2, I finally made as much money as men got during calendar year 2018. (Darn! I forgot to wear red!) In other words, it took me 16 months to earn what men earned in only 12 months.

Pondering this sad state of affairs, I have hit upon the greatest idea ever. I want to be the lead plaintiff in a nationwide equal pay class action lawsuit.

The defendants will be every employer in the United States. The plaintiff class will be all women in the United States who work outside the home.

The latest equal pay statistics show that working women get 80 cents for every dollar that men earn, so how can we miss?

(I'm not sure how that 80-cent figure jibes with the April 2 "Equal Pay Day." I know I'm only an English major, but wouldn't 80 cents be 80 percent of one dollar? Meaning that women make 20 percent less than men? But four months is 33.3 percent of a year. If 80 cents is right, then shouldn't Equal Pay Day have been about three weeks ago?)

Anyway, enough of my quibbling. Ladies, are you with me? Here are some FAQs:

Robin, I'm intrigued! What will it cost me to join the lawsuit?

Nothing! In 2017, there were 74.6 million women in the U.S. civilian labor force. During that same period, there were more than twice that many men in the workforce. When we win 20 cents for every dollar that all working men earn, plus interest, times roughly 130 million working men, we will literally be drowning in money. 

And under the Equal Pay Act, the loser has to pay the winner's attorneys' fees. Lawyers are already lining up at my door waiting to take this case!

Robin, if there are 74.6 million women in the workforce and almost twice that many men, wouldn't there be about 150 million men in the workforce instead of 130 million?

Could be. I told you I was an English major. I like your number even better!

I hate to be a wet blanket, but I always thought to win an equal pay case, you had to compare "apples to apples." In other words, you had to identify a specific male comparator, and he had to be in the same (or a very similar) job, working for the same employer, and having comparable experience, tenure, education, skills, job performance, geography, and background.

Why should I care about those technicalities? Nobody else does. 

I read a study that said after you control for employer, position, years in the workforce (including career interruptions), education, skills, background, and all the rest, the gender pay gap almost disappears. If the defendants know about that study, won't it destroy our case?

Think positive, like me! Don't worry about those studies that take all the relevant variables into account. There are a lot more studies that don't. Or studies that consider all the relevant variables but only in piecemeal fashion. When the defendants hit us with a good study, we'll hit back with all of our blunt instruments. Can hundreds of unscientific pay studies be wrong?

From a practical standpoint, it seems like a 74.6-million plaintiff case against who-knows-how-many employers would be "unwieldy." Do you think a court would allow it?

Absolutely!

Robin, are you being sarcastic?

Heavens, no. Nein. Nyet. No way.

But seriously, folks . . .

Yes, I'm being a smart aleck. I don't plan to file a class action lawsuit against any employer, much less all employers in the United States, who include many of our dear clients. (To those of you who were looking forward to climbing aboard my gravy train, I apologize.)

I am not a "pay gap denier." I am sure that there are employers who pay women less than similarly situated men for discriminatory reasons. At the same time, though, most of the "pay gap" studies that make their way into the news either use poor methodology (often driven by a political agenda) or, if legitimate, were not intended to measure discrimination. For example, it's a fact that the average pay for all women is only about 80 percent of the pay for all men, but that number says nothing about why this is so. 

I also object to the assumption that a gender pay gap must be due to discrimination rather than other causes. Even a bad reason -- like Joe makes more money than Jane because Joe's daddy owns the company and Jane's does not -- is not necessarily an unlawful reason.

And I have a compulsion to point these things out once a year during "equal pay season."

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.