When Joyce Sterling, a law professor at the University of Denver, studied pay discrepancies among lawyers in the 1990s, she quickly learned there was a big pay gap between men and women with the same skill set.
A key finding? “Women don’t always know they’re paid less,” she said.
More than a decade later, she learned shocking news: she had become her own statistic. She, along with fellow female law professors, earned 15 to 30 percent less than their male colleagues. Sterling joined six female law professors, including current DU law professor K.K. DuVivier, in a lawsuit that culminated last year with the school paying them $2.66 million in back wages and damages.
They’re now speaking out on behalf of women who may not have the financial wherewithal or time to solve their own pay inequity problems. DuVivier spoke at a rally Tuesday asking state legislators to support the Equal Pay for Equal Work Act, a bill aimed at making it easier for employees to figure out how much other coworkers earn. It also prevents employers from asking about salary history, which is blamed for the cycle of female underpayment.
“I feel like I have a responsibility to other women, to speak out for those who have so many fewer opportunities,” DuVivier said. “I feel like I can’t just sit there now that I got the benefit of the litigation and not try to keep pushing the issue.”
The measure, Senate Bill 85, aims to equalize pay for similar work regardless of gender. There was push back by some in the business community, which felt that new requirements — such as an employee’s right to sue or a requirement to publicly post job openings with estimated salary — were unnecessary. The bill, after eight amendments were adopted to appease business groups, heads for a vote — with the blessing of the Senate committee — by the full Senate on Wednesday.
Update on April 3, 2019: The Senate passed the bill on a second reading.
“Part of the problem women face when they’re moving through their careers and part of the reason why they’re systemically underpaid is they’re not aware of the opportunity for advancement or are excluded,” said Sen. Jessie Danielson, a Democrat from Lakewood who is a prime sponsor of the bill. “What we’ve done is if you have a job opportunity, you have to let everyone in the company know about it and you have to post a salary range. It’s up to the employee to know whether they can apply for the job and go through the interview process and advocate for themselves.”
According to the Institute for Women’s Policy Research, the pay gap between male and female workers in Colorado has narrowed in the past 15 years. But women working full time year-round still earn less than their male counterparts — about 86 cents for every dollar a man made in 2016. If the wage gap was eliminated in Colorado immediately, the boost in a woman’s pay would be $7,000 a year, for a median income of $50,000.
During Tuesday’s rally, Ashley Panelli spoke out about learning at a past job that a male coworker she supervised at a group home made $15,000 more than she did.
“As a person with a higher level of education, a greater set of skills and higher level of experience, the work I did was not only equal, it was greater. Yet this man was earning so much more than me that the difference in pay could have covered my rent for almost two years at the time,” said Panelli, who now works as the paid-leave organizer for 9to5 Colorado, an organization representing working women. “There is nothing more demoralizing than ultimately finding out that your work is undervalued because of your identity and to be told that it is somehow your own fault.”
Sterling, the DU professor, said wage transparency will certainly help equalize employee pay, but women must also speak up. A woman she interviewed as part of a focus group once told Sperling about being unhappy with her pay raises for years. She finally spoke to a senior male employee she felt was sympathetic.
“He said most men appeal their pay raises and go in and argue what their raises should be while women never appeal. Even that one little thing could make a very big difference. After that advice, she appealed every year. Eventually she started getting the raise she felt she deserved,” Sterling said. “Women don’t ask if they’re being paid equal to their counterparts, and if you don’t ask, you don’t know.”
Equal pay bill as amended
The proposed bill aims to tackle some of the root problem by starting with the hiring process and job posting. The key points:
- Companies must post job openings with salary ranges to all employees, regardless of whether they are deemed qualified.
- Employers cannot ask about salary history, which was cited as a reason why some workers are stuck in lower starting pay that feeds the cycle of underpayment.
- An employee can sue the company, although as amended, nothing would preclude the worker from pursuing mediation by the Colorado Civil Rights division, which currently oversees such disputes.
- Exceptions allowing for higher pay include related education, training and experience; seniority; a merit system “that measures earnings by quantity or quality of production;” travel requirements; and geographic location to account for cost of living in different cities.
- Record-keeping violations would be enforced by the state’s Labor Department, which could issue fines of $500 to $10,000 per violation.
Awareness has grown over the gender pay gap, with groups like the National Committee on Pay Equity promoting Equal Pay Day, which was Tuesday. In 2015, Colorado State University discovered that its male professors earned 16 percent more than female professors.The school gave raises to full-time female professors and said it closed the pay gap last fall, according to the Fort Collins Coloradoan. In San Francisco, Salesforce spent at least $6 million to equalize its gender pay gap and recently reported a record sales year.
Businesses and pay advocates compromise
The main opposition for the Colorado bill came from the business community, which faces costs if pay is equalized. The Colorado Chamber of Commerce also raised concerns over the administrative burden of record keeping (employers would be required to keep salary history for two years after an employee leaves to track any pattern of wage discrepancy). Other concerns included employees suing in court instead of pursuing mediation, and the amount of back pay an employer would owe if found negligent.
“Sometimes when these bills are introduced, they have more of a hammer effect than a collaborative one,” said Loren Furman, the chamber’s senior vice president for state and federal relations.
Amendments were approved to satisfy most of the Chamber’s qualms, she said, including specifically not banning mediation, reducing the number of years of back pay to three instead of six, and adding an extra year before the law would go into effect, now Jan. 1, 2021.
“The chair of the judiciary committee and the leadership in the Senate and the Republicans in the committee really helped us get to the place we are right now,” Furman said. “Right now, we’re not lobbying against the bill, although we have a couple of members who would probably like to see one to two small changes (on the administrative burden). … The whole goal of this is to make sure there is equal pay for workers and not lawsuits.”
Currently, workers in Colorado can file a wage complaint with the state labor department. But current law is not a mandate and offers no funding for enforcement, said Eric Yohe, with the Department of Labor and Employment.
“That said, we actually rarely receive inquiries about this,” Yohe said, adding that such calls or emails come in “maybe once every couple of months.”
Inquiries related to gender wage disparity are referred to the Colorado Civil Rights division because they could be considered discrimination. The latest data from the state’s Civil Rights division had 101 complaints over unequal pay in fiscal year 2018. There was no indication in the report on how many were gender related.
Others who originally opposed the bill, including the University of Colorado and the Colorado Municipal League, also changed their minds after amendments were approved.
“The amendments adopted do not represent 100% of what employer advocates asked for, but (Colorado Municipal League) commends the sponsors for looking at and addressing most of the issues brought to their attention. The league withdrew opposition and we are putting all our effort into (the family-leave bill). That legislation has much more significant impact and has not yet been amended to alleviate employer concerns.”
(The family leave proposal, Senate Bill 188, would require employers and employees to pay into a state fund that could be tapped by workers to get paid for up to 12 weeks of family leave. )
There is a federal law that covers pay inequity. The U.S. Equal Pay Act, passed in 1963, requires that men and women in the same workplace be paid the same if they’re doing “substantially equal” work. The federal law doesn’t stop with salary but requires fair compensation for holiday pay, stock options, bonuses, profit sharing and more. And if inequity is discovered, an employer isn’t allowed to reduce wages to equalize pay.
But supporters of the proposed state law said there are too many loopholes in the federal law and it’s vague so few cases get resolved. According to data from the U.S. Equal Employment Opportunity Commission, which enforces the law, there have only been about 1,000 cases a year nationwide since 1997. Monetary settlements in 2017 reached $9.3 million.
“The primary reason we’ve been working on a state version of equal pay is there’s a real loophole in the federal act. Under the federal act, there are defenses for pay disparity that have nothing to do with gender,” said Charlotte N. Sweeney, a lawyer with Sweeney & Bechtold who also represented the DU professors. “Sure, there are ways to pay people differently, but we’re going to list them.”
For example, she said, an amendment allows employers to pay staff in Denver differently from those in Pueblo, where the cost of living is lower. Where education is related to a job, that’s allowed, too. But when it’s not needed for the job, an employer can’t pay more to a worker with a college degree, she said.
Whether the bill passes, all businesses should examine pay equity because it’s a topic being heavily scrutinized at the state and federal level, said Brian Ayers, managing attorney of Affirmative Action Planning Services for the Employers Council.
“A lot of times, it’s a series of individual decisions where you don’t see disparity or discrimination until you step back. It’s not just the cost of exceeding the pay range for one employee but for the 20 or 30 employees in the same pay group. Now you have 20 to 30 people at a disparity,” he said. “Our reaction is employers need to be proactive in this. The 2021 deadline gives employers more runway. The important thing for employers to do is take advantage of the time and take a look at their pay structure and if they do have disparities, address them now. This is really a case where an ounce of prevention is worth a pound of cure.”
This story was updated on April 3, 2019 to add an update of the Senate vote plus comments from Colorado Department of Labor and Employment
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