The US Women’s Soccer Team, which won the World Cup this year, has been in a visible fight for equal pay on the international stage, as the US men’s team gets paid more but performs abysmally in comparison. On July 10, the day that New York City celebrated the women’s international triumph, Governor Andrew Cuomo signed a law that expanded the already-existing New York Pay Equity Law. It will take effect in October.
The US Women’s Soccer Team has been blazing the trail for other athletes and teams to come forward demanding better treatment that they feel is disparate compared to male teams. Their lawsuit, filed this past March against US Soccer, was not only related to their unequal pay but also the treatment they received more generally—from traveling accommodations to the field material that they play on. Cuomo signing this equal pay bill into law on the day of their ticker-tape parade is quite symbolic of the large role they have played in bringing discrimination to the forefront.
The new law extends protections from pay discrimination beyond sex—it also includes “age, race, creed, color, gender identity or expression, military status, disability, genetic characteristics, familial status, marital status, domestic violence victim status, or other status protected by law.” Pay discrimination based on sex was already illegal under previously existing law.
The inclusion of more characteristics is an important addition to the law, as income disparities are not just seen between sexes. They are created and exaggerated by other characteristics. An excerpt from the Washington Post demonstrates this:
“[White women make] 89 cents for every $1 earned by men, according to state statistics. For black and Latina women, the gap is wider. They earn, respectively, 63 cents and 54 cents for every $1 earned by men.”
In 2017, overall, women earned 82 centers for every dollar men earned. Clearly, though, when one takes into account race and gender, people of color are even more harshly discriminated against and suffering due to pay discrimination.
Another component of this law is that it bans employers from looking into or asking about an applicant’s or employee’s salary history. They cannot ask an applicant’s or employee’s former employers about this, either. Retaliation against an applicant or employee for not providing their salary history is prohibited under the new law.
The penalties for violating this pay discrimination law could be fines for each violation up to $500.
Instead of mandating equal pay for equal work, the law now mandates equal pay for work that is “substantially similar” when “viewed as a composite of skill, effort, and responsibility and performed under similar working conditions,” according to the National Law Review.
The federal Equal Pay Act uses similar language, but not the exact same wording, to protect workers from discrimination: it requires that the “skill, effort and responsibility required in the performance of the jobs are substantially equal,” according to Workplace Fairness.
You may wonder how your employer is legally allowed to equalize wages. It is important to note that they cannot reduce the wages of someone else to be equal with another worker’s—they must raise the lower wage.
There are systems on which differences in pay can be legally based, according to the New York Department of Labor:
- “a seniority system;
- a merit system;
- a system which measures earnings by quantity or quality of production; or
- a bona fide factor other than sex, such as education, training, or experience.”
However, as Mondaq reports, the bona fide factor must meet certain qualifications:
“The employer has to be able to show, however, that the ‘bona fide factor’ is job-related, satisfies a specific business purpose, and is consistent with business necessity. In addition, the employer may not rely on any of these factors if a pay practice disparately impacts any of the protected classes and the employer has refused to adopt an alternative that would not produce a differential.”
The supposed bona fide factor may also have a disparate impact even if it appears lawful on its face. The National Law Review expands on what an employee can show to prove that the bona fide factor qualification is actually discriminatory:
“(i) the employer’s practice causes a disparate impact on the basis of a protected class; (ii) a viable alternative practice exists that would remove the wage differential and serve the same business purpose; and (iii) the employer refused to adopt the alternative practice.”