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Thursday, March 08, 2018

Happy International Women's Day and the Future of Pay Equity

I am trying to not blog or be online much at all this week with the goal of getting a good mid-semester spring leap on several of my new research projects. International Women's Day is a good exception though* - and this is an optimistic year for all of us law professors working to promote gender equality.

#metoo has certainly brought momentum to both the public debates and legislative/administrative efforts to create better work environments for all. And my latest book argues that law, including IP, contract law and antitrust laws, can be reformed in ways that would empower expression and disruption of dominant, too often problematic, images and messages that pervade our markets, including concepts of girlhood and womanhood. I've also argued here that by focusing on sexual harassment we should not lose sight of some of the most important aspects of employment discrimination, that are (alas I know this because I teach and write and consult about employment law) less sexy, literally and figuratively. 

I am writing a new law review article tentatively titled Flipping Transparency on its Head: The Future of Pay Equity. And I am honored to be named the keynote speaker in the annual upcoming Pay Equity Day celebration this April at the Lawyer's Club of San Diego. The talk, and this post, will definitely help shape the project. Pay equity, including equitable pay and promotion across non-identical positions, is perhaps the most difficult issue to tackle in the field of gender work discrimination and the contemporary gender pay gaps are even more pronounced when we examine the salaries of women of color. My article a very very (very) drafty draft though I will be happy to circulate some version soon enough, but my general argument is that the underlying logic of a successful pay equity reform will be to flip transparency structures on their head. The reality is that we've had pay equity laws on the books for decades, both federal and state prohibition on pay discrimination. And yet, the gaps persist and basically every economic study agrees that while some gaps can be explained by seemingly "private choices" (a problematic notion in itself) such as education levels, stereotypically gendered careers, and hours and years in the job market, there is a component of the gap that simply cannot be explained away and points to direct discrimination. The new path for pay equity is to look at what happens at the negotiation table and the information that circulates in the job market, including both intra- and inter-firm speech. Several new state laws/bills, some just passed and are taking effect this year (California, NY, Mass., Maryland), prohibit employers from asking prospective employees about their previous salaries and, at the same time, prohibit employers from preventing employees from sharing their salaries with others. The Paycheck Fairness Act which has been introduced in Congress for many years now, most recently in 2017, would also protect employees from being retaliated against when they reveal their pay to others. In the article I draw on the robust research (including my own) on judgement and decision-making and behavioral law to understand how information is exchanged, understood and used in market relations. I also look at NDAs, something that I have been studying extensively in relation to talent mobility and innovation (also see here and here and here), and propose a notice requirement about the ability to discuss pay similar to the NDA whistleblowing exception notice requirement adopted by Congress when it enacted in 2016 the Defend Trade Secrets Act (I've written about this new provision here). My goal is to add meat and layers to the new wisdom of flipping transparency and point out the promises as well as the challenges of current reforms.

Now is the perfect time in the writing to learn from your reactions, thoughts and related works – and so I'm looking forward!

*wow I'm reminded that blogging is super helpful to articulating new projects – I knew there was an exception to my rule about an online detox for my mid-semester jump-start writing week! We prawfs always find the good loopholes [and point out the bad ones]!

Image result for pay equity


Posted by Orly Lobel on March 8, 2018 at 05:15 PM | Permalink


Well either whatever discrimination that occurs is rational from the corporate point of view, and then presumably not a public policy problem, or if it is irrational it would be more reasonable to help companies identify profit-making opportunities, not burden them with even more regulation. Eg, if women are cheaper to hire maybe they should be hired in preference to men. Certainly companies today are open to the idea of hiring women in all types of positions and if they could legally exploit the fact that women are paid less perhaps they would want to hire them even more. (Which in turn would decrease the wage differential.)

What one definitely should not do is feed the idea that someone is a victim if someone else has a higher wage or that wages should have anything to do with "fairness".

Posted by: Jr | Mar 9, 2018 4:22:16 AM

And here Orly , you may find in numbers and statistics in the US :


Posted by: El roam | Mar 8, 2018 7:34:28 PM

It seems Orly , that you are not aware ( maybe not ) to discrimination due to pregnancy ( whether current , whether prospect one ) . here :

" Legal Rights for Pregnant Workers under Federal Law "

May lead you to that direction or point ….


Posted by: El roam | Mar 8, 2018 7:29:36 PM

Jr - Clearly we disagree on both fact and policy - pay discrimination is far from trivial and it pervades nearly every industry, including for example, as some recent cases show the law firm world and the academy.

Posted by: Orly Lobel | Mar 8, 2018 6:17:22 PM

Why should the trivial difference in salaries that remain after controlling for other variables than gender (and of course it is not possible to control for many intangible characteristics) lead to any political action at all? I would think we could agree that equal pay laws were no longer needed and abolish them. (Not accepting that they ever were a good idea of course.)

Posted by: Jr | Mar 8, 2018 6:07:12 PM

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