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Mark and Michelle are hired at the same time, by the same law firm in the same city, to do the same job. They are both third-year associate attorneys; they went to the same law school; they graduated with the same GPA; and they have the same skill set and job experience. Now, let’s assume the law firm, their new employer, offers them two different salaries. Mark is offered $10,000 a year more than Michelle.

What is your first reaction to this set of facts? Let me just tell you. I read that paragraph and immediately got hot and bothered. How can it ever be ok to pay a woman less than a man – to do the same job, with the same education, skill set, and experience?

Well, interestingly enough – there are a few circumstances where it is ok, under federal law, to pay women and men different pay rates for the same work.

Equal Pay Act of 1963

The federal law that governs equal pay is fittingly called the Equal Pay Act. The EPA makes it illegal for an employer to pay different wages to to employees of the opposite sex for equal work on jobs that require equal skill, effort and responsibility and are performed under similar working conditions. Although the EPA was enacted to redress wage discrimination against women, the act protects men as well as women from wage discrimination based on sex.

Kennedy signs EPA into Law
Kennedy signs EPA into Law

That being said, the EPA provides four exceptions to the general rule. Employers can pay men and women different rates for substantially equal work if the disparity is justified by:

  1. a seniority system;
  2. a merit pay system;
  3. a system that measures earnings by quantity or quality of production; or
  4. a differential based on any factor other than sex.

Can Employers Use Prior Salary to Justify Wage Disparity?

Continue Reading This Week’s Dinner Conversation, brought to you by the Ninth Circuit Court of Appeals

What do the following have in common?

  • Americans who can drive a stick shift;
  • Female equity partners in AmLaw 200;
  • Projected sales growth for smartwatches in 2017;
  • Americans who have seen a ghost.

ComboAnswer: 18%

In 2016, women made up 18% of the female equity partners in the AmLaw 200. Am I happy with that statistic? Eh, no. (But I’m pretty excited that 18% of Americans claim to have seen a ghost).

Ok, so, we’re at 18%. Disheartening – maybe, but let’s step back for a minute and put that number in perspective. Where have we been, and where are we going? It is Women’s History Month after all, and I’ve been running down a rabbit hole for some hours now – researching women who charged into the legal profession long before smartwatches.

Belva Ann Lockwood; First woman allowed to practice before the United States Supreme Court in 1879
Belva Ann Lockwood; First woman “allowed” to practice before the United States Supreme Court in 1879

Did you know that in 1890, women lawyers made up less than one half of one percent of the profession (208 women out of 89,422 total lawyers)? We’ve come a long way – thanks to plenty of women and men who fought the good fight. Take Lelia Robinson for example.

Lelia Robinson was the first woman to graduate from Boston University Law School. Go Lelia! But, when she tried to sit for the state bar she was turned away. The trial court and the appellate court denied her petition for admission. The court’s reasoning? Women’s bar admission would lead to suffrage. Lelia J. Robinson’s Case, 131 Mass. 376 (1881).

Lelia wouldn’t take no for an answer. When the courts shut her out, she turned to the legislature – and lobbied for a women’s lawyer bill, which passed unanimously. Lelia then became the first female admitted to the Massachusetts bar!

Continue Reading Celebrating Women’s History Month