By Cynthia Gentile, J.D., SHRM-CP , Faculty Member, Dr. Wallace E. Boston School of Business and
Ivy Kempf, attorney, Faculty Member, Pierce College
Despite equal pay laws, considerable inequity remains between how much men and women earn for the same job. In this episode, APU’s Cynthia Gentile talks to professor and attorney Ivy Kempf about the gender pay gap and the laws aimed at helping balance the inequity. Listen to learn about legally mandated equal pay, precedent-setting cases and more.
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Cynthia Gentile: Welcome to the podcast. I’m your host, Cynthia Gentile. Today, I’m excited to chat with Ivy Kempf. Ivy is a professor of legal studies at Pierce College in Philadelphia. Thanks for joining me today, Ivy.
Ivy Kempf: Thanks for having me, Cyndi. Hi, listeners. It’s great to be here.
Cynthia Gentile: Well, this podcast is the first in what we hope will be many episodes focused on important and current issues in employment law. I’m excited to have this opportunity to sit down with you, Ivy, to unpack these complicated issues that really do impact all of us in one way or another. I’m honored to work with you on this project because I know your background as both a litigator and an educator will give you a unique perspective.
Ivy Kempf: Thanks, Cyndi. I’m excited to work with you, too, on this podcast. And I think maybe our listeners should know a little bit about our background. What do you think?
Cynthia Gentile: Yeah, I think we should share that.
Ivy Kempf: Okay, great. So, Cyndi and I actually went to law school together. Then many years later, after having our own careers as lawyers, we just randomly ended up at the same college teaching legal studies. So, fate brought us together then, and maybe it brought us together again to talk about these hot topics in employment law.
Cynthia Gentile: I’m really excited to do this with you, my friend. And it is funny how life takes many weird twists and turns, but somehow you always end up maybe with the exact place you’re supposed to be. Well, let’s not waste any more time.
Ivy Kempf: Let’s get to it.
Cynthia Gentile: Yeah, let’s dig right in. So, we’re going to dive into the deep end in this first podcast. We’re not taking any slow starts. So, today we’re going to tackle an issue of equal pay and the gender pay gap. This is a topic that seems to come up periodically, but even when it’s not a headline or a lead story on the news, it’s a reality for working women everywhere.
I think it’s helpful for us to set the stage by starting with the framework that supports the notion of legally mandated equal pay. So, let’s talk a little bit about the laws that are in place that, in theory, balance the proverbial pay scales.
Ivy Kempf: So just to give you guys a really brief background of where this all began. How did this even become an issue? Well, women were working in the home and then eventually in around 1945, during World War II, women started to enter into the workforce outside of the home. You might remember the Rosie the Riveter ads. That’s that woman with the red polka dotted scarf on her head, and she’s got her arm out like she’s making a muscle, “We can do it” kind of ads.
So, they were attracting women into the workforce during World War II. But, not surprisingly, women got paid less for doing the very same jobs as their former male counterparts. What’s interesting is that it was actually men’s labors, the unions for men, got nervous about when they came back from war, if they were going to come back and get paid less because women had been doing their jobs for so much less. So, the unions started to advocate for equal pay in hopes that it would prevent future wage cuts for men when they returned from war. So, that was going on.
And then, in 1961, fast forward a bit, we have a labor activist, her name was Esther Peterson. She was the head of the Women’s Bureau in the Department of Labor, and that was responsible for administering gender issue labor laws. So, she was working with the Kennedy Administration at the time, really pushing them to try to pass some type of legislation for equal pay for women. And she actually is the person who drafted the Equal Pay Act and submitted it to Congress.
[Podcast: Women’s Rights: Reckoning with the Past in the Present]
At that time, just to give you an idea, women on average were earning 59% of what men were paid for the same exact job. Can you imagine that, Cyndi, your male colleague, your male professor at your university getting paid almost double what you’re getting paid?
Cynthia Gentile: Unbelievable. But as we’ll learn later, it’s not all that much better now.
Ivy Kempf: Yeah, spoiler alert. So, fast forward now to 1963, a couple years later. So really, we’re starting to see a lot of movement. We’ve got the Equal Pay Act now getting passed in 1963. And, in short, the Equal Pay Act, or the EPA, prohibits discrimination based on sex. It requires men and women to be paid equally for “substantially equal work performed in the same establishment.” So, it really had to be the same job at the same place. It allows individuals to file for pay discrimination claims under Title VII of the Civil Rights Act within 180 days of the employer’s discriminatory conduct.
[Podcast: Efforts to Enshrine Equal Rights in the Constitution Pick Up Speed]
So, what’s the Civil Rights Act, you might ask? Well, I’ll tell you about it. In 1964, just a year later, the Civil Rights Act was passed. I know we’ve all heard about the Civil Rights Act. It did a lot of things. But among other things, it protects discrimination in employment for hiring, promoting, and firing.
And that’s based on your protected class status, and those are things such as sex, race, or religion. And the Civil Rights Act required claims to be made within 180 days of the employer’s discriminatory conduct, just like the Equal Pay Act. No big deal, you might think. So what? You’ve got to file a claim within 180 days of your employer discriminating against you.
Well, the problem is that first the employee had to file a complaint with the EEOC, that stands for Equal Employment Opportunity Commission. They would have to do a full investigation of the claim to determine if there was even sufficient merit to bring the suit to begin with. So, they’d have to basically give you permission. The EEOC, by the way, has jurisdiction over not just Civil Rights Act violations, but also the Equal Pay Act that I talked about earlier. However, the Equal Pay Act statute of limitations … Actually, let me stop right there. Cyndi, you want to talk about what a statute of limitations is for everybody?
Cynthia Gentile: Sure. It’s really important that that 180-day statute of limitations is clear because a statute of limitations is written into most laws. Simply put, it’s the time during which a plaintiff or an injured party can bring a case. So, for example, in general, if an individual has a car accident, they have two years from the date of that accident to sue for any injuries, or any losses of salary, et cetera. So, you’ve got two years to figure out if you’re hurt and you need to make a claim, or want to make a claim. But this 180 days statute limitations that’s about six months is a little bit more complicated. Right, Ivy?
Ivy Kempf: Absolutely. It’s very complicated, and it doesn’t even freeze. So once, remember the EEOC is doing their investigation. Well, the statute of limitations is running that whole time and because it doesn’t freeze. So, a lot of times, if a woman made a claim, and then the EEOC was doing their investigation, remember, the statute of limitations is running. They come back to them and say, “Great, you’ve got a suit you can bring.” Well, guess what? The 180 days is expired by then. And a woman was left with no option at that point.
So, therein lies a lot of the problem with the Equal Pay and Civil Rights Act, because you can bring claims under both. So that’s the state of the federal acts, but I think there is some additional stuff that can happen with case law that maybe Cyndi will tell us about that helped women along with avoiding that type of obstacle that we just talked about.
Cynthia Gentile: So, it’s almost 50 years Later. We have what’s called the Lilly Ledbetter Fair Pay Act of 2009.
Ivy Kempf: 50 years later. Crazy.
Cynthia Gentile: Yeah, it took about 50 years to figure this out. So, let me back up before we can get to the Lilly Ledbetter Fair Pay Act, which was signed into law by President Obama, that act was written in response to a Supreme Court decision in a case. The case name was Ledbetter versus Goodyear Tire and Rubber. And that case was decided in 2007.
So, in that case, the plaintiff, Ms. Ledbetter, sued the defendant Goodyear for gender discrimination under Title VII of the Civil Rights Act. And she alleged that during her 15 years at Goodyear, her low salary was due to her gender. So, she alleged gender discrimination resulting in disparate pay. Goodyear claimed that only Ledbetter’s salary during the 180-day period that Title VII allows should be considered. But, Ledbetter insisted that Title VII allows the full history of discriminatory pay to be considered.
And, ultimately, the Supreme Court agreed with the defendant, they agreed with Goodyear, ruling that Ledbetter’s claim was too late. She was time barred by the 180-day statute of limitations. So, here again, 50 years later, we’re still running into this statute of limitations issue.
So, the Ledbetter Fair Pay Act, which was signed in 2009, actually changes that. And it states that each paycheck that contains discriminatory compensation is a separate violation, essentially restarts that 180-day time period with every paycheck. And this allows a woman to bring the case at any point, essentially, if you’re being paid every week, or two weeks, or month, your 180 days starts all over again at each pay.
But, before we really even can understand some of the nuances here around either the Civil Rights Act or the Lilly Ledbetter Act, we need to understand what is going on with the pay gap as it stands today in 2022. So, Ivy, do you want to highlight some of the major discrepancies that we know of here with regard to pay?
Ivy Kempf: Absolutely, I’d love to do that. It’s remained relatively stable as far as where it’s been in the past 15 years. But let’s take a look back to 1980. In 1980, women—this is important ages, 25 to 34—so they’re in the beginning of their careers, maybe when you wouldn’t be paid quite as much as you would in the latter years of your life. But in 1980 women, ages 25 to 34 were earning 67% of what their male counterparts were earning for the same work.
In 2019, women earned 82%. So better, but still far from good. Then in 2020, women earned 84% of what men earned. And by the way, this is according to the Pew Research Center, I’m not sure if I mentioned that. So, in 2020, I’m sorry, I’ll just repeat that, women earned 84% of what men earned, and that’s the median hourly earnings of both full-time and part-time workers. So, just to give you an idea, based on that estimate, it would take an extra 42 days of work for a woman to earn what a man did in 2020. So, 2020, two years ago.
It also appeared from the data that the gap increased with age. So the older that you were, the larger the gap was, so the less that women would get paid. So, in the higher paying jobs, women would get less. I was curious about this, so I took a look at the U.S. Census Bureau Quarterly Workforce Indicators, or the QWI. They have specific data for women workers that are ages, 35 to 44. So, here we are with more established careers. According to the QWI data, based on unemployment insurance wage records for the third quarter of 2020, which is the very most recent data we have, women in the United States earned 30% less than men.
It’s not to mention the disparity between white and non-white women. We’re just talking about all women. So when we look closer at the gap with non-white women, it gets even crazier. Cyndi, did you want to talk a bit about what you found in regards to that?
Cynthia Gentile: Yeah. So as you said, these numbers are even more dispiriting when we factor in race and even ethnicity into the equation. So, here’s some more statistics for you. Black women earn just about 63 cents for every dollar earned by a white male, and they don’t reach equal pay until around August 3rd of the year. So, that means black women are working eight months plus to earn what a man would earn starting in January. And it gets worse. Native American women are even in a worse situation. They earn about 60 cents on the dollar. And Latino women suffer from the most disparate income, earning just 55 cents on the dollar.
An interesting statistic I want to mention is that women in the Asian American Pacific Islander community, the AAPI community, earn on average 85 cents for every dollar earned by a white man. But, when you factor in the country of origin, some AAIP women earn as little as 52 cents on the dollar.
So, as we try to grapple with these statistics, it’s really important to understand the state of the law as it stands right now. So, we talked about the Lily Ledbetter Act, and we talked about how at least we’ve worked out a way to not have the 180-day statute of limitations just stop a large percentage of these disparate pay cases. What other laws do we have available to us right now, Ivy, that we can utilize to help balance these scales?
Ivy Kempf: Sure. So, the next thing we do is we look at state laws, because everything that Cyndi and I just talked about was the federal, apply to the federal laws, and they apply to everybody. But now, we can look at states and see are there more specific protections that the states give us because that’s what they’re allowed to do. They’re allowed to provide us with more protection.
So, most states and local jurisdictions even, have equal pay laws. They’re going to vary in the amount of information that maybe must be shared by the employer when they list a job, or with whom the information needs to be shared. There’s also a distinction on whether salary information must be provided automatically or upon request.
Cynthia Gentile: Ivy, thank you for helping me work through these complicated issues. And this is really important because if a woman is asked to provide her salary history, it is documented and proven that her salary, offered at that next position, will be in line with where she was previously, and potentially more unequal to her male counterparts. So, as of today, there are 21 states and another 21 localities that prohibit employers from asking applicants about their salary history. And that means they can’t ask a male applicant or a female applicant. So, we’re focused a lot on the gender discrimination with pay, but it is important to know that protection extends regardless of whether it is a female potential employee or male potential employee.
Ivy Kempf: That’s true. That’s an important distinction. So, one state, for instance, California, they—and again, all states pretty much have some type of legislation—but California requires employers to disclose salary or hourly wage, but in that state, they only have to do so upon reasonable request. And that’s only after an applicant interviews for a position. So, you can see, you have to get pretty far down the line in order to even ask about the salary range in California.
I should note that California also, and most states, have a lot of legislation in the works right now, too, from the research I’ve done. So, there’s more to come. So it’s one of those things you have to really keep on top of.
Other states, even local jurisdiction, so if we’re going to look at a local jurisdiction, let’s look at one that I’m from, which is Philadelphia. Philadelphia passed laws that prohibit an employer from considering the applicant’s history when even making a decision. So, in fact, Philadelphia, this ordinance that Philadelphia passed, is one of the first laws of its kind to pass constitutional review unscathed. It’s called the Philadelphia Wage Equity Ordinance. And this was in 2017, the city of Philadelphia, they responded to the census data. They were looking at census data and it demonstrated the existence of a wage disparity for women and minorities.
So, in response to that, they enacted this ordinance, and it does two things. It prohibits employers from, one, asking, like we just talked about, the employee’s wage history. So, they can’t ask you what you earned. And two, from relying on that wage history when they determine wages. And that second piece is actually pretty novel and different. And so, this case, the Chamber of Commerce, it’s actually called Greater Philadelphia Chamber of Commerce versus City of Philadelphia, I’m sure we’ll link to it on our page or something, Cyndi?
Cynthia Gentile: Absolutely, it’ll be in the notes.
Ivy Kempf: Great. So, in this case, the Chamber of Commerce challenged the ordinance. They argued that it was a violation of free speech, and therefore unconstitutional. So, they brought it to the district court, who agreed that the first part of it, the inquiry provision prohibiting the employer from asking about the wage history, they said that part violated the First Amendment speech rights of employers, and they invalidated that part of the ordinance.
But, with respect to the second half, the part that says can they rely on that in order to determine the wage they’re going to give to the employee, the court concluded that that portion did not violate the First Amendment because it didn’t impact speech. But that decision was appealed and in February of 2020, the Third Circuit Court of Appeals upheld both parts of the ordinance as constitutional. So, here we have a constitutional ordinance in Philadelphia that does both of those things that I mentioned earlier. And this has really paved the way for other cities and states to follow suit. Any case law out there, Cyndi?
Cynthia Gentile: Well, just before we even move to that, to reiterate the point that this protection does extend to both men and women. So, it’s really important to think this through when you go to apply for a job. If you are required to say what you made in your last job, the employer is potentially basing your salary on that previous wage, not your experience, your skills, and the value that you add to their organization. So this is a really excellent change to the law that allows lots of people to increase their pay, ultimately.
Ivy Kempf: Absolutely. The second part that relying on such wage history to determine the wages, they’re going to have to—they’re being the employer—is going to have to be able to independently justify why they’re giving you the wage that they’re giving you. And they have to show that it’s not based on how much you made previously. So that’s really important.
Cynthia Gentile: Right. And that is the perfect place to talk about a really, really interesting case that maybe some of us have heard about. It certainly made the news just a few months ago. And that is the equal pay case that was just settled in February of this year involving the U.S. Women’s soccer team.
So, I want to give a little background on how this case started and where it ended up. So, in 2016, five players filed a federal equal pay complaint alleging discriminatory salary practices. They claimed that each member of the women’s team earned ultimately thousands of dollars less than male soccer players, despite the fact that the women’s team often had a more winning record and was raking in more money.
So, in 2019, just a couple months after the women won their second title and the men failed to even qualify for the World Cup, 28 female players filed a lawsuit against U.S. Soccer. But a federal judge dismissed that claim in 2020.
Didn’t end there. The women appealed that decision in 2021 and in February of 2022, the parties reached a settlement, and it’s a huge settlement. It’s a staggering settlement. So, U.S. Soccer has agreed to pay the women $22 million in back pay. And they set aside an additional $2 million for the women to use after they stop playing to support their individual charitable efforts.
So, ultimately, each player can request up to $50,000 to support a charity that they’re passionate about after they leave the sport. So, this is a monumentally important case when we look at equal pay. Now, it’s important just from a procedural perspective, this case settled. So, there isn’t a decision issued by a judge or by a court. The two parties came together, came to an agreement.
So, we have just some general framework of that agreement, as I mentioned, the large cash settlement of $22 million in back pay, and $2 million for some charities. But it’s going to have a major impact when it comes to equal pay.
Ivy Kempf: Certainly hope so. I mean, that’s the goal. It’s a great demonstration this case really demonstrates because I think often the thing that I hear just anecdotally is, “I don’t see women not making the same amount as men in my position or my job.” And that might be true, but it’s important to see what’s actually happening in the world. And this was a great example, this case. They had statistics, again, I love that stuff, right? They’ve got numbers. They have facts that show that the women earned more than three times less than what the men did while they were performing demonstrably better. They were raking in more money for the organization, so you can’t use the argument that women didn’t make as much money in the sport and that’s why they got paid less. It just wasn’t true.
Cynthia Gentile: And weren’t there some other points brought up here that showed the discriminatory practices, now, beyond pay, just some other factors that came into play?
Ivy Kempf: So, yes, there are other things in this case that are really noteworthy that I’d love to talk about. One is they brought up in this case that when you play on AstroTurf, apparently, that you’re more prone to get injuries and things like that, rather than playing on natural grass.
So, during the time period of the complaint, the women noted that they had played in 62 domestic matches, 13 of them were played on artificial services, the AstroTurf that I noted earlier. Men played in 49 domestic matches, and only one of them was played on artificial surface. And so, again, this is something that the league can negotiate. They didn’t negotiate for the women as much, right? They had to play in 13 artificial surfaces, men only played in one. And sometimes the league would go in and put natural grass over the AstroTurf to try to make it safer. And they would go in and they did that eight times for the men, and only once for the women.
Cynthia Gentile: That’s amazing. That’s a really staggering little factoid that just suggests how the inequality permeated the league beyond the salary. This is simply just about safety and protecting the players.
Ivy Kempf: And even three of the venues that they covered for the men were venues that the women played, too, but they didn’t install grass for them. In addition to that, it gets worse. They also would charter flights for the men. Seven of the games, the men’s national team, the USSF chartered flights for them so that they could just sleep on the plane, relax on the plane, get ready for the game. And zero were chartered for women. And remember the women were playing more games and were going to the World Cup like 10 out of 11 years—it was crazy.
And then the last thing that they noted in the complaint, which I thought was just egregious, was that the ticket sales. The USSF sets the ticket prices for any game and so for the women, they would set the ticket prices much lower than men’s games. And setting those lower ticket prices, coupled with the marketing and promotion support, which was virtually none, they even had a quote from one of the marketing people saying that they really did not market the women’s games as much, or even nearly what they should. That ultimately is going to result in less revenue. So, you have less ticket prices and they’re not being promoted and then when they didn’t get enough revenue that was used as a pretext for the lower compensation for women players. So, you can just see this pattern of just really putting the men in a better position, even though they were not winning.
Cynthia Gentile: It’s really interesting when you bring up the points about the field conditions, the travel conditions, the way the teams are promoted, and the ticket prices. Each of those little factors could be used to justify the unequal pay. And by exposing it in the complaint, I think that it got a lot more public attention for the women, and ultimately brought a lot more attention to the real claim here, which was that they were earning less money. They didn’t bring this to court to say, “Hey, we want private chartered flights.” But by adding that little piece in, it just goes to support how much better, frankly, the men’s team was being treated, and even though they weren’t earning as much money or winning as much. It’s amazing.
Ivy Kempf: It goes back to what I was saying earlier with, I think people ultimately, when they think of equal pay, they think it’s not happening today. But it is happening, and here’s a perfect example of not only a situation where the women weren’t getting paid enough, but also other things that were clear discrimination against the women. So, it’s fascinating.
Cynthia Gentile: So, how do we think that this case will impact future cases involving unequal pay?
Ivy Kempf: Well, it’s hard to say because like you said, it’s a settlement, so it’s not case law. They can’t necessarily use it as precedent going forward. So, that’s the unfortunate bit. But I think the media attention that this case got might be a deterrent for others because they don’t want to be seen as a discriminatory organization or discriminating organization. But, I don’t know, honestly nothing right now.
Cynthia Gentile: The point about it not being case law, sure, it’s not something that another party can look at and say, “Hey, this is the law.” However, a $22 or $24 million settlement is nothing to sneeze at. So, I think that alone will allow other parties to feel more empowered to bring these cases, because there is a precedent out there just in regards to the settlement. While it doesn’t have legal weight in the court system, it has weight in the court of public opinion, which we know is very important.
So, Ivy, there’s so much to unpack when we think about gender pay and the gender pay gap. And we’ve really just scratched the surface today, we just picked a little bit of the history to talk about. And this one case that I know is burning a hole in my proverbial pocket. But, I hope we can return to this topic as developments require, because I know there will be developments. And I look forward to tackling our next hot topic in employment law.
Ivy Kempf: I do, too. I can’t wait to see what it is, actually. There’s so much more to explore. Maybe we should ask our listeners. What do you think, Cyndi? Maybe they could send in topic ideas to see what stuff they want to know more about.
Cynthia Gentile: You know, that’s a great idea. So, if anyone has a topic that is interesting to them, I’ll have my contact information in the show notes from today, and you can always send me an email, and Ivy and I will see if it’s something that we can explore in more detail in a further episode.
Ivy Kempf: I love it.
Cynthia Gentile: Well, thank you, Ivy, and thank you to our listeners for joining us. Be well and be safe
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