The recent lawsuit by five members of the US Women’s National Team against U.S. Soccer has received considerable media attention. Today’s post looks at what the lawsuit teaches us about California’s Fair Pay Act.

Before the Fair Pay Act took effect on January 1, 2016, the law required equal pay for equal work. From a defense perspective, you can argue that the women couldn’t meet that standard. You could argue that the stars of the women’s team, as brilliant as they are, don’t have the speed and power needed to earn a spot on the men’s team.

With the Fair Pay Act, however, you don’t need equal work. You need substantially similar work. For that inquiry, you look at “a composite of skill, effort, and responsibility” and whether the work is “performed under similar working conditions.” I suspect the women would meet that standard.

Copyright: ostill / 123RF Stock Photo
Copyright: ostill / 123RF Stock Photo

Disclaimer No. 1: By saying they couldn’t make the men’s team, I’m not denigrating the accomplishments of the US Women’s National Team. They’ve been the best in the world. Those of us who still talk about how close we came to an intramural high school basketball championship are in no position to cast aspersions.

Disclaimer No. 2: I’m not saying the women don’t deserve better treatment and higher pay. I’m just using this to illustrate how the law has changed. While I suspect the dispute will be resolved through negotiation, perhaps in the collective bargaining process, I’m rooting for the USWNT to score this goal.

As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer.  As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated.  She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment.  As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests).  Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend.  While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication.  Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed.  And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently.  In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior.  That requires a very delicate balance.  In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client.  At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace.  Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone.  Let’s just hope employers (and employees), female (and male), take a minute to digest them.

 

Unless you’ve seen it in person, it’s hard to appreciate how the litigation process magnifies and distorts people’s behavior. The ongoing trial of Ellen Pao’s discrimination and retaliation claims against Silicon Valley VC firm Kleiner Perkins is a recent example. What was the firm thinking when it invited only men to a dinner at Al Gore’s home? What were a partner’s motives when he gave Pao a gift of erotic poetry? When the firm accuses her of not being “a team player,” is the criticism valid or is it gender-based?

Comments and actions get scrutinized, questioned, and argued to a ridiculous degree. And in the end, what actually happened is far less important than how the fact finder (often a jury) perceives what happened. If more people understood how their actions would appear under the microscope of litigation, they’d never leave their work stations.

Takeaways?

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Sex discrimination has been illegal in this country since the 1960s.  But apparently we’re still struggling to understand what "sex" means in that context.

This week, Governor Brown signed into law AB 887.  The bill adds language to several anti-discrimination statutes, including sections of the Fair Employment and Housing Act, to define the term "sex."

"Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person’s gender. "Gender" means sex, and includes a person’s gender identity and gender expression.  "Gender expression" means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

Thank goodness we got that cleared up!