Want Equal Pay? Be a Man!

by Jack Tuckner

You're a bartender working in a restaurant and you discover that one of the

male bartenders who was hired after you is earning more money per hour than

you are. When you complain to the restaurant manager, he tells you what other

people get paid is none of your business; get back to work. What should you do?

1. Forget about it. You're lucky you have a job.

2. Apologize to the manager for being insubordinate and tell him you're

grateful he lets you work there.

3. Apologize to the male bartender before he finds out you complained about

him and he gets really mad at you and makes you cut all the Bloody Mary limes

for Sunday brunch.

4. Wait till everyone goes home and then blow the restaurant into tomorrow

with C-4 explosives.

5. Assert your right to Equal Pay.

Answer:  Even though (d) is an attractive choice, I'd have to go with (e) as

the most empowering solution.

Whether you're a female doctor, lawyer, corporate executive, office worker,

college professor, actor, athlete, stockbroker or mail clerk, you'd do significantly

better if your face was stubbly in the morning and you always left the toilet seat

in an upright position. Say what? Okay, I'll repeat it; if you have the same job,

same experience and same education as a similarly situated male employee,

chances are you'd be socking away 26.4% more money if you were a little bigger

and a lot hairier.

If you earn around $40,000 per year, you'd be pulling down $10,560 more cash

each year if you were a man. That's a substantial amount of money that you

can't spend on things that you want and people that you love. That's thousands

of dollars each year which isn't available to take care of yourself, your family,

travel, buy clothes, invest, pay bills or just have fun. This disparity exists simply

because you're a woman.

Is this fair? No. But hey, babe, we're Men. Men have to support their families,

don't they? Men don't have to take twelve weeks off from work, that's three

months away from the action and the clients and the testosterone-laced deals,

every time we feel like having another kid. None of this Family and Medical

Leave Act nonsense for us. We work. Why? Because we're Men. We're rewarded

for our strength, assertiveness and, well, just because we're Manly. Wake up and

smell the Y chromosomes, honey. Men are men and women are women,

somebody has to win, rule, succeed and dominate. Just be grateful you're an

American woman, sweetheart. Try moving to practically any other country on

this planet and see how the boys react to all this equality drivel. Listen, it wasn't

so long ago that all you broads were confined to the kitchen and the bedroom,

all right? You've come a long way, baby. So, chill.

Chill? How about steam? Well, don't get mad, get even. Or better yet, get Equal. 

The Equal Pay Act, that is. It's true that centuries of gender stereotypes,

religious fundamentalism and social conventions die hard and slow, resulting in

the persistence of unequal pay for women performing the same work as men.  It

also happens to be illegal under United States law for women to earn less than

men for substantially equal work.

Under the federal Equal Pay Act of 1963, as well as the civil rights law known as

Title VII and individual state's equal pay laws, discrimination in compensation

to employees on the basis of sex is prohibited.  It doesn't matter whether your

employer is paying you less wages or providing you with fewer benefits

intentionally or by accident, if you are earning less overall compensation than a

male counterpart performing substantially the same job at the same place of

business, you can file a charge with the Equal Employment Opportunity

Commission (see box below).  Or you can commence a lawsuit in federal court

seeking lost wages (what you would have earned over the past two years; three

years if a willful violation is proven), and the Court may double that amount,

known as liquidated damages, unless the employer can demonstrate that it

acted in good faith and with reasonable grounds to believe that it was in

compliance with the Equal Pay Act.  When you prevail in Court, you may also be

awarded attorneys' fees for your intrepid trial lawyer in addition to the costs of

the litigation.  You must file your claim within two years after the cause of action

accrues, or three years in the event of a willful violation. In English, this means

that you should get the ball rolling as soon as you become aware that your pay is

less than men performing the same job as you.

Except for a spontaneous flash fire that levels two-thirds of corporate

headquarters, a jury trial in federal court is the last event that your employer

wants to see happen.  Attorneys' fees (theirs and yours), double damages, costs

(theirs and yours), time away from work for key executives preparing for the

defense, potential adverse publicity for the company; in short, if your claim is

provable, you will most likely favorably settle your case long before the first gavel

ever strikes the bench.

So, What is Equal Work?

The Equal Pay Act requires that you prove that your position and the male's

position (the two jobs being compared), require substantially equal skill, effort

and responsibility and are performed under similar working conditions.  The

compared jobs do not have to be identical in every respect, just substantially

equal.  It is the actual content of the job, not the job description, that matters. 

To prove your case in Court, you must show that the employer pays a male

employee more than you for performing equal work.  Once that is established,

then your employer has to prove, if they can, that the pay difference is justified

by one of the EPA's four defenses.  For example, those male and female

bartenders in the same restaurant mentioned above cannot be paid differently

unless the business can show that the inequality in pay is not due to the gender

of the bartenders but because of one of the following:

1. The male bartender has seniority;

2. There is a bona fide merit system in place which is administered uniformly

and systematically, i.e., fairly;

3. There is a system in place at the restaurant which establishes earnings for

bartenders by the quantity or the quality of production (amount of drinks served

or the manner in which they're served);

4. There is another legitimate nondiscriminatory reason for the discrepancy

other than the sex of the workers;

5. Any gender-neutral classification system.

There are of course, exceptions and distinctions within the law that require

examination on a case by case basis. Generally speaking, the plaintiff (you),

must prove that her job, compared with a male working in the same

establishment, demands equal skill, effort and responsibility and is performed

under similar working conditions. If the jobs are determined to be truly equal

and there is a benefit discrepancy in favor of one sex to the detriment of the

other sex (guess which sex is almost always the former and which is the latter),

a complaint may be filed alleging violations of the EPA as well as sex

discrimination charges under Title VII of the federal law (which must be filed

with the Equal Employment Opportunity Commission within 300 days of the

last discriminatory act). 1

There is much work yet to be done before women are truly integrated within the

workforce and compensated fairly, and there are many sociological,

psychological and political factors that need to be recognized and ultimately

changed. Unfair and discriminatory wage practices lead to a smaller paycheck

and often create long-term economic insecurity for families. Women are still

concentrated in service sector positions such as teaching and nursing. The more

an occupation is dominated by women, the less it pays. Many families rely

heavily, if not exclusively, on women's wages. When women are not paid equally

and fairly, they're not the only ones who suffer. Every family member is cheated

as well.

A survey conducted in 1992 by Egan & Bendick showed that women in certain

occupations who anegotiated for their salary added, on average, $3,500 to their

pay. So, if you're not earning what you're worth, assert your rights and demand

that your company show you the money.

The Equal Employment Opportunity Commission (EEOC), is the federal

administrative agency that monitors human rights claims within the workplace.

It is responsible for intake, investigation and conciliation of charges of

discrimination under United States law. It also has the authority to commence a

private lawsuit on behalf of the charging party, the person who is treated

differently at work due to discrimination. Under federal law, your company

must employ at least 15 people for you to be covered by the United States anti-

discrimination laws. If your company has less than 15 employees, you may be

able to pursue a claim under your individual state or city's employment

discrimination laws.

Consult with a plaintiff's employment discrimination lawyer in your area before

commencing any action or filing a charge. There are numerous variations and

subtleties to be evaluated in each case and many different state and local laws

that need to be considered.

Click here for a condensed transcript of Jack Tuckner’s presentation on Gender

Pay Equity on a panel with Representative United States Congresswoman

Carolyn Maloney, National Organization for Women, NYC Chapter President

Sonia Ossorio and lawyer and activist Liz Abzug at the American Association of

University Women’s New York chapter.  A podcast of this presentation is coming

soon...