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Gender Wage Discrimination Lawsuits Heat up with #EqualPayNow

 

While the #MeToo movement has spurred a new wave of sexual harassment lawsuits in organizations throughout the country, there is a parallel trend also gaining a foothold: unequal pay lawsuits based on gender or race.

Corporate defense lawyers have expressed concern that pay discrimination cases also seem to be on the rise as more women are feeling emboldened. There is even a hashtag trending in social media for it as well: #EqualPayNow.

There have been a few high-profile cases recently against Vice Media, Google and Oracle. that have made the headlines, but there are thousands of smaller ones that never make the news.

The federal Equal Pay Act, which is part of the Fair Labor Standards Act, prohibits gender-pay discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions.

While there have been no new laws at the federal level to better enforce pay equity between genders, many states have enacted their own laws.

States act

Most recently, a new pay-equity measure took effect on Jan. 1, 2018 in California. The new salary privacy law prohibits employers as well as agents of the employer (headhunters and recruiters) from inquiring into or relying on a candidate's past salary history (compensation and benefits) unless certain circumstances have been met.

California is just one of the rising number of jurisdictions to pass this type of law, joining the ranks of Massachusetts, Delaware, New York City and Oregon.

What you can do

Wage discrimination cases can be difficult to prove. If there's a disparity in pay, an employer must prove that it's justified by one of the following:

  • A seniority system
  • A merit system
  • A pay system based on quantity or quality of output
  • Any other factor other than sex

While the first three factors are pretty straightforward, that last category makes cases difficult to prove. An employer may say that the higher-paid employee has more experience or training, or that he was simply a better negotiator.

If you have not already done so, your organization should have an employee practices liability insurance policy in place. EPLI policies will pay for defense costs should you be sued for wage discrimination.

Addressing Workplace Bullying Can Head off Lawsuits

Poor employment practices, harassment and discrimination are coming to the forefront in the U.S., another workplace liability organizations should not overlook is bullying.

Social media trends have shined the spotlight on a variety of ways people are treated poorly, but the bullying focus has mostly been on schools and not workplaces. Workplace bullying can lead to lawsuits against your organization, in addition to possible workers' comp claims.

There has been a bit of an epiphany recently that many employment practices lawsuits concerning stress in the workplace, psychiatric injury, harassment and other issues have their root in bullying by someone in the workplace - often a superior.

Bullying has been present in workplaces for as long as they have existed.  This is especially true for sales people and management with production goals hanging over their heads. Many people are browbeaten by superiors, but the question is: When does leaning on an employee to perform cross the line and become bullying?

Bullying statistics

  • 19% of workers have been victims of workplace bullying.
  • 61% of the perpetrators are described as a boss or supervisor.
  • 65% of the workers who reported being bullied also said they had lost their jobs.
  • 37% of workers said their workplace bullying experiences were covered up by others in the workplace.

Source: Workplace Bullying Institute survey (2017)

Seven essential elements of workplace bullying

  1. Repeated behavior
  2. Inappropriate behavior
  3. Direct or indirect behavior
  4. Verbal, physical or otherwise
  5. Conducted by one or more persons
  6. Takes place at the workplace in the course of employment
  7. Capable of being reasonably regarded as undermining a person's dignity.

Source: Johan Lubbe, partner at law firm Jackson Lewis LLP

Bullies in the workplace appear to be gender neutral. Women account for 58% of workplace bullies, according to the Workplace Bullying and Trauma Institute.

That said, women are the primary targets, according to the WBTI. Women bullies choose female targets 87% of the time, and male targets only 13%. Men bullies choose female targets 71% of the time, and male targets 29%. 

Employment practices liability

Employers should address workplace bullying before it is too late, because it can create liability issues when left unaddressed.

Employers should pay attention to company culture, watch out for cliques that may make newer employees feel unwelcome, and resist making allowances for the companies' best performers if they are accused of bullying, according to experts.

If you have an employment practices liability policy, coverage for bullying claims may already be covered. But EPLI is very fact-specific and the facts of each case determine a lot on the coverage provided.

Workplace bullying might fall under wrongful acts or workplace harassment. Another area where coverage could be triggered is accusations of "infliction of emotional distress."

While bullying is not currently covered by any laws, there have been efforts in state legislatures to get laws on the books making workplace bullying an actionable offense.

 
Frances Zettl