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Chasing Equal Pay

Unequal pay is the norm around the world, even where it has been illegal for decades.

Equal pay is a failure as a social program.  Explaining how that came to be is the topic of the thesis one of my students is writing.  So, recently, when I had the chance to chat with a respected equal pay lawyer here in the UK, I asked her about the conditions women face in defending their right to fair compensation.

Let me remind readers that, in previous posts, I have shown data documenting that unequal pay is the norm around the world, even in countries where it is has been illegal for decades.  There are slight variations, with the Scandinavian countries doing better than the rest of us; differences in policy even among Britain, America, Canada, and Australia, which usually track together on gender issues, have created slightly better outcomes in Canada and the US.

But the big picture is that equal pay is not happening.  It appears to be an especially big problem in the private sector, among professional/managerial women, and at the top.  In other words, pay is most unequal among the very women you would expect to defend themselves. Why don’t they?

Well, one reason is lack of reliable information.  Your buddy in the next office may well tell you what he is making.  But without a reliable sense of what the whole field of comparators looks like, you are taking a big risk even to raise the issue with your employer.  In the UK, there is a standard procedure for requesting this information, but serving the form is likely to be taken as an aggressive action.  Your workplace can turn suddenly sour, any advantages or promising projects you may have could abruptly disappear.  You could be reassigned to the Death Valley office.  Sure, it is illegal to retaliate against a woman making an equal pay claim, but you would have to sue over it.

And suing, in the UK as in the US, is a risky procedure.  Even with a good case, the chances of winning are extremely uncertain.  There are many defenses against equal pay claims and it is hard to predict how they will play with a tribunal.  Interestingly, the best a woman suing in the UK can hope for is to win a paycheck as big as the worst paid man in her comparison group.  The presumption is that only the difference between you and the lowest performer in the office can be attributed to gender–thus, it follows that all other differences must be attributable to some legitimate excuse.  So, even a positive decision may not get you enough to cover the legal costs, which are likely to be considerable because the process can drag out for years.  As in the US, the employer’s best strategy is just to string it out, hoping the complainant runs out of money or patience.

This attorney told me she always advises any potential client to think carefully about the non-monetary costs.  “It takes over your life,” she said, “You have to devote enormous amounts of time to it.  And the negativity can poison everything, leaking over into your personal relationships.”

In the UK, she said, equal pay claims have been most common in the public sector, where a number of successful cases have made a big financial dent.  She remarked that she has been surprised that there are so few equal pay claims in the private sector. But she pointed out that two conditions made government a better environment to prosecute such claims: the positions are all already graded, so it is easier to identify clear comparators, and there are unions to provide backing, in terms of advice, weight, and money for lawyers.  Even the unions, though, are seldom really on the side of women per se, but tend to go forward only if a large class of worker can be affected by the action–or if men can somehow benefit from a change in policy resulting from an action on behalf of females.

In professional or managerial positions, it is much harder to compare work and compensation packages are often  more complicated, so it is harder to get a good handle on what others are being paid.  Your future depends much more on maintaining the good opinion of co-workers than it would in a lower class of job.  And, oddly, your own colleagues are likely to disapprove if you even bring up the topic.  In England, paying women equally is “a nice thing to do if you can afford it,” not something people see as a moral issue.  So, a woman making a complaint, even if justified, becomes a pariah–instead of the employer practicing unequal pay becoming a villain.  People in an organization often seem to know in their bones that unequal pay is rampant, but they treat it rather like families with alcoholism or incest do.  That is, they ignore it and are offended if the truth is articulated.

Professional workers don’t have unions, usually.  So that avenue of support is not available at all.

Finally, there is the attitude that often greets a high-achieving woman who is well paid.  Even if you are paid substantially less than your male co-workers, the feeling among unions and others meant to support the equality laws, is frequently that, as a woman, you should be grateful for what you have.  Because there are so many men out there making less than you are. (And maybe because you belong at home anyway?)

You can see why access to pay information becomes so important.  Before you take a risk like this, before you even invest the time in it, you need to know what your situation truly is–shorn of the gossip and false impressions that often color informal knowledge.  And, if equal pay for women is ever to become the moral issue it should be, the public needs to understand how widespread and significant it is.  Professional women, who tend to think of themselves as exceptional, need to realize they are not.

So, it still seems to me that the best chance of getting the equal pay agenda back on track is to enact laws requiring that institutions document, monitor, and disclose their compensation practices by gender.  This would allow “name and shame” tactics, which tend to be very effective in other arenas, such as communications regulation.  It would raise public awareness of how pervasive pay discrimination really is.  And it might get some comfortable women out of their chairs and into the streets.

The British government is about to get rid of the Equal Pay Questionnaire, so women soon won’t even be able to ask the question.  And, the clause under the 2010 Equality Act that would have demanded disclosure by next year is not going to be enforced–businesses claim compliance will require too much work.  (Since when is “too much work” an acceptable reason to deny people equal rights?) The coalition government has denied it is trying, by these and other actions, to abolish the Equality Act, but observers such as the Oxford Human Rights Hub say they are doing it anyway, using a “death by a thousand cuts” strategy.


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