Is the Difference Who Asks?

While one issue involving  equal pay claims gets much attention, an equally troubling issue flies under the radar. Yet, it deserves the same level of attention and scrutiny.

The first highly publicized equal pay issue is whether an employer can rely on an employee’s prior salary as its legitimate and non-discriminatory reason to pay a female employee less than a male peer.

Last year, the Ninth Circuit, in an en banc decision in Rizo v. Yovino, answered that question with “no.” This issue is not resolved as the parties requested review from the Supreme Court. We don’t know yet if the Supreme Court will take on this case.

A separate equal pay question gets shockingly little attention. This issue is: do employers respond differently to men and women who try to negotiate their salary?

For years, women have been told they are not good negotiators and do not push hard enough for themselves as compared to men. However, a recent article published in the Harvard Business Review suggests this is not the case. This article cites research showing women ask for raises just as often as men do, but are less likely to get them.

In some Texas equal pay lawsuits, the facts show that women attempted to negotiate for better salaries, but got less favorable results less than men who negotiated.

In April 2018, a federal judge in Austin denied a motion for summary judgment on an equal pay claim. This case involved two employees hired for a Reconsideration Nurse position (Nurse IV) at  Texas Health and Human Services. The Nurse IV position has a salary range with a minimum and a maximum salary.

The THHS hiring officer testified it was her standard practice to always start by offering an applicant the minimum salary. A female applied and, as was the practice, was initially offered the salary minimum. The female applicant negotiated and asked for more. She was told that THHS could match her then current salary, but could not exceed it. She then accepted the job and received a salary that matched her then existing salary.

However, when a male applied for the Nurse IV job, the same hiring officer offered the male applicant $1,300 more  than the minimum salary as his initial offer. When he negotiated for more, he ultimately received pay that was $100 more per month than his then existing salary.

The same hiring officer hired both employees. She testified that her standard practice was to initially offer the minimum salary, but she deviated from that practice and offered the male employee $1,300 more than the salary minimum as the initial offer. She also told the female applicant that THHS could match, but could not exceed her prior salary. Yet, she gave the male applicant $100 per month more than his prior salary.

This raises the question:  are women bad at negotiating or is this just another way employers discriminate against women?

Lawyers who handle equal pay lawsuits must be attuned to this issue and make focused efforts during discovery to dig into how employers respond to the job applicants’ efforts to negotiate. If lawyers can establish a pattern of disparate treatment between how the employer responded to the female applicants as compared to the male applicants, that may be enough to persuade a federal judge to give the unequal pay claims a closer look.