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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re sharing a recording of an AccelPro Live event featuring Jessica Stender, Policy Director and Deputy Legal Director at the civil rights organization, Equal Rights Advocates. We discuss pay discrimination, which she describes as “pervasive, persistent, pernicious.”
Stender offers tips to companies on how to spot and address pay discrimination. That includes conducting a pay audit, not asking about salary histories and ensuring that you have a diverse workforce in high-paying jobs.
This live (recorded) episode of the AccelPro Employment Law podcast includes audience Q&A and is just one example of what we have planned for 2024. There’s much more to come from us on the events front, so keep an eye on your inbox.
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Interview References:
Jessica Stender’s Equal Rights Advocates profile.
4:21 | Estelle R. Ramey.
8:09 | Otterman, Sharon and Nolan, Erin. (September 18, 2023). One of America’s First Women’s Colleges Is Accused of Paying Men More. The New York Times.
8:32 | The Equal Pay Act of 1963. (Pub. L. 88-38) (EPA), as amended appears in volume 29 of the United States Code, at section 206(d). (1963).
9:23 | Income in the United States: 2022. (September 2023). United States Census Bureau.
14:08 | Stender, Jessica. (July 19, 2020). How Salary History Bans Help Combat the Race and Gender Pay Gap. Ms.
18:31 | National Labor Relations Act, 29 U.S.C. §§ 151-169. (1935).
26:02 | Salesforce CEO Marc Benioff Discusses Equal Pay on 60 Minutes.
TRANSCRIPT
I. CARRYING ON A CIVIL RIGHTS LEGACY
Matt Crossman, Host: We’re going to talk about your background, what it’s like having a career in civil rights, and then we’ll examine pay discrimination. You’ve been a paralegal for Friends of Farm Workers, an extern in the Ninth Circuit, you worked in private practice, and now you work for Equal Rights Advocates, a civil rights organization.
That’s a winding path for sure. I want you to take me back to the trailhead. When did you decide you wanted to go into the legal field, and how did you end up with such a diverse set of employment experiences?
Jessica Stender: I grew up in a family with many lawyers, so it was not foreign to me, this idea of using the law to try to advance various issues related to social justice. There was never any pressure, but it was definitely something that I was aware of in terms of ways to combat some of the injustices that I saw.
I worked as a paralegal in Pennsylvania helping to represent farm workers who are, of course, almost all immigrant and migrant workers from other countries who are paid very low wages. They often experience workplace rights violations, and I observed just how pervasive those employment law violations were and how much, even as a paralegal, I was able to do in terms of getting people paid wages they were owed.
And of course migrant farming is grueling work, and not well paid anyway, but to not get paid those wages that they were owed was a real injustice upon an injustice. And so seeing the way that law could be used to help those lower wage, marginalized workers was really what convinced me to go to law school and become a lawyer.
I have always focused on employment law from the worker’s side. I have worked with many great lawyers on the other side, but I’ve always worked on the plaintiff’s side representing workers in class-action cases, and then in a variety of nonprofits representing individual workers. That reinforced my interest in ensuring that the laws are actually enforced to ensure that workers are getting paid what they are owed, that they are not being discriminated against or harassed. It also led me to my current role where I lead our policy advocacy and work to try to strengthen laws, mostly in the realm of employment rights for workers.
MC: Your title is Policy Director and Deputy Legal Director for Equal Rights Advocates (ERA). What is Equal Rights Advocates and what do you do for them?
JS: We are a national gender justice organization. We advocate for the rights of women and girls and other marginalized gender identities.
We mostly focus on issues related to rights at work and rights at school. So in the workplace realm, we focus on women and other groups who have experienced discrimination in the workplace on issues ranging from pay discrimination, which we’ll be talking about more today, pregnancy discrimination, sexual harassment, and other forms of harassment and discrimination, as well as some issues related to workplace leave, paid family leave and other leave issues.
On the education side, we really focus on what we often refer to as education civil rights, the rights of students to be in school free of discrimination. We help students who have experienced discrimination at school, usually issues related to sexual harassment and assault.
And at ERA, I lead our legislative advocacy at the state level here in California where we’re based, but also supporting advocates in other states to pass similar protections for women and people of other gender identities and students who are facing discrimination and harassment at work and at school. And then also at the federal level—to the extent progress is possible at the federal level—supporting legislative advocacy there as well. I also do some litigation in pay equity and sexual harassment and discrimination.
MC: A couple more background questions before we get into pay discrimination. I’m going to ask you about one of your favorite topics, and that is your grandmother, Estelle Ramey. Her last name is your middle name, so you go by Jessica Ramey Stender.
She was a pioneer in the medical field, and she built a reputation by, I’m going to use the word tweaking, but I could also say eviscerating, establishment doctors and politicians with her razor wit. She counted Ruth Bader Ginsburg among her friends, so much so that RBG gave her eulogy. What is your best Estelle Ramey story?
JS: There are many, and I hope the listeners will indulge us in a quick Estelle Ramey segment. She really was a trailblazing feminist who inspired me in all aspects of my life, both career and otherwise. She was an endocrinologist and a physiologist, so her area of study in the medical field was hormones.
One of my favorite stories is she rose to national prominence after she rebutted a famous Democratic leader in the 1970s. He had said that women were unfit for important jobs such as president because of their quote, raging hormonal influences. As you said, she had a pretty quick, razor wit, and of course was a trained endocrinologist who studied the effect of hormones. She wrote an article that became pretty well known in the Washington Star, essentially breaking down this whole argument, and showing how frankly ridiculous this person’s statement was.
His name was Dr. Edgar Berman. Essentially one of her quotes was, “As an endocrinologist in good standing, I was startled to learn that ovarian hormones are toxic to brain cells.” This kind of led to a big national debate that was hosted by the National Organization for Women between her and Dr. Berman. All of us are still shaking our heads at Dr. Berman for accepting that debate because she eviscerated him.
There was an article about the debate, which said essentially Dr. Ramey figuratively mopped up the floor with Dr. Berman. So she was a really incredible thinker. A lot of the issues she confronted then are sadly still apparent today; you hear maybe not quite as bluntly, although sometimes as bluntly and directly, people in positions of power, including former presidents and others, implying that women are not fit for certain jobs because of their hormones or their gender.
So unfortunately, some of the arguments that she was making then are still relevant today, but I really enjoy getting the chance to share a story about her, so thanks for asking.
MC: Certainly. I think it’s also relevant to your position now, because with that background, you seem almost destined to wind up in the civil-rights world. How did growing up surrounded by such influences prepare you for the career that you’ve had in civil rights? And what advice do you have for attorneys considering a similar path?
JS: You’re right. I think she and others in my family did set the path for me. Those are big shoes to fill, but she inspired me to advocate for gender justice and work in this area.
One of the biggest lessons she taught me and just countless other people was that she really believed in mentorship and supporting other women—and others, not just women—who wanted to follow similar paths. She really taught me the importance of mentorship and supporting people who want to pursue careers similar to yours or pursue social justice careers or otherwise.
And also, she had no fear. For a lot of us, I think especially women, but really people across genders, it can be scary to become a lawyer or work in a different type of field. That kind of bravery has been an inspiration for me to become more confident and sure of myself in my career, and to want to use the law for some change.
MC: One of the pillars of our platform here at AccelPro Employment Law is the importance of peer-to-peer relationships. That’s what this conversation is about. Getting experts together with other experts to talk about the issues that are important to them. How have peer-to-peer relationships been important to you?
JS: Peer-to-peer relationships and mentorship relationships have been critical for me to get to the place I am at in my career and life. I really believe in passing that along and I really value supporting people who are trying to enter jobs in law, especially those who might not have come from that type of background.
I have benefited greatly from others in terms of providing that mentorship and also peer-to-peer support as we make our way through this career and life.
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II. PAY DISCRIMINATION: “PERVASIVE, PERSISTENT, PERNICIOUS”
MC: We’re going to jump now to pay discrimination. You were quoted in a New York Times article about pay discrimination at Vassar. You said, and I quote here, “The problem at Vassar is really indicative of how deep and how pervasive pay discrimination problems are in our society.” Those are strong words. How deep and how pervasive is pay discrimination?
JS: Well, unfortunately, it’s now over 60 years since the passage of the Federal Equal Pay Act in 1963, which, of course, prohibits discrimination in pay between men and women, and we too often see that women are still paid less than their male counterparts for performing the same or substantially similar work. We also see a very pervasive, persistent, pernicious—all the Ps!—wage gap that women still face. That wage gap applies to women overall, but it’s much larger for women of color who face intersectional forms of discrimination which impact their ability to earn equal wages to men and to enter into higher wage jobs.
Based on 2022 data, when you look at all earners, all women for whom there’s data—women working full-time year round, part time, and seasonal or part year—women overall face a wage gap of 77 cents for every dollar paid to men.
If you look at just full-time, year-round workers, that wage gap is 84 cents. Those are the two ways of looking at the gap. But either way, women face a very large wage gap.
For women of color, that gap is far worse. For black women, it’s 64 cents to the dollar. And then for Latinas, it’s just 52 cents to the dollar. So to answer your question, yes, the wage gap is pervasive and unfortunately exists across industries, across education levels, across wage levels, and it’s something that we are trying to combat in a variety of ways.
MC: As you mentioned, the Equal Pay Act was enacted in 1963. At the rate we’re going, wage parity won’t be reached until 2059. That’s 96 years. What lessons have you learned working with Equal Rights Advocates about what companies are doing wrong that other companies can avoid?
JS: I think there are a lot of steps that companies can take to try to prevent and also rectify gender and race pay gaps.
There are a lot of companies that are actually trying to take these types of proactive steps and putting an importance on and prioritizing trying to advance pay equity and close gender and race wage gaps. Some of them are required to by state laws in addition to that federal law I mentioned.
There are a lot of studies that show that when companies do take proactive steps to promote and advance pay equity, the research shows that these are all companies in which workers are happier. There’s less turnover. So in addition to complying with the law and doing the right thing, it’s good for business to proactively address pay equity.
One of the steps that we see as really important that some companies take and others should take is doing audits. A lot of times we know that gender- and race-based pay disparities are hidden from sight—definitely from workers, but sometimes even employers, especially in large companies, may not be aware of pay disparities within their companies. And so doing a pay audit and really just looking at your pay data and looking at it broken down by race, gender, ethnicity, and also how people are spread out among job categories, can really provide an important kind of bird’s eye view, and show where there are gender and race pay disparities.
Another big contributor to the wage gap is this issue of occupational segregation, where women are concentrated in lower paying jobs and not given access to higher-paid positions. So when an employer is aware of those trends, they can both close the gender and race wage gap if they need to, if there are those gaps, and also make changes to their recruitment or promotion practices to ensure that women and people of color are employed in all wage levels and not concentrated in lower-paying jobs. So that’s one really important step.
Another one, which is now law in some states and cities, is a salary history ban—not asking applicants about prior salary. We’ve done another AccelPro session on that, so there’s a deeper dive on that.
This has been common for a long time, that employers ask a candidate, well, what did you make in your last job? I know I’ve received it in pretty much every job I’ve ever been in, including for social justice organizations. It was, and still is, a very common question. Not necessarily always with bad intentions, but it perpetuates these wage gaps and really enables pay discrimination to follow women throughout their career and compounding it over time.
Some companies have decided proactively to just institute a ban on salary history questions, regardless of whether it’s prohibited or not, recognizing the way that it perpetuates pay discrimination.
So those are a few of the steps that we would recommend companies take.
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III. SALARY HISTORY BANS: GETTING RID OF AN AGE-OLD QUESTION
MC: I’ll jump in on salary history bans. As you mentioned, you and I have a separate interview in which we go in depth into that, which will come out later this year. In an article in Ms. Magazine, you called salary history bans, “pay transparency’s new frontier.” What do employment attorneys and HR execs need to know about the growing trend of states adopting salary history bans?
JS: I think the first thing to be aware of is that the laws that address prior salary inquiry vary from state to state and locality to locality.
The common trend that a lot of these laws, but not all, have is that they contain provisions that say an employer cannot ask about prior salary or rely on prior salary when setting compensation.
However, all of the laws have an exception that if the candidate wants to provide that information—if they think that that will help them in their negotiations—then of course it’s on the table and an employer then can discuss it and rely on it.
Most of the laws do say that an employer can ask about salary expectations of a candidate. So that’s another aspect of these laws to note.
MC: One of the big challenges, whether it’s salary history bans or pay equity or pay discrimination, is that the laws vary from state to state. And especially now, post-COVID, with a hybrid and remote work world, it’s more complicated. Usually New York and California are out front on employment law issues. Are New York and California the most employee friendly?
JS: There’s no doubt that New York and California do have more robust protections on the books against pay discrimination and ensuring better protections to ensure pay equity. Some of the other states that have in recent years passed some pretty robust pay equity and other related protections are Colorado, Washington state and Oregon. So there’s a number of states that have passed, in some cases really broad, almost omnibus laws, that really address a lot of issues related to pay equity and combating pay discrimination in a variety of ways.
Some states, though, in addition to those, have passed more narrow, but still important protections. Some states, for example, have just passed a prior salary ban, which is an important first step. Some states have passed salary transparency laws requiring the posting of salary ranges or requiring employers to provide salary ranges under certain circumstances. Some states have passed laws that expand their equal pay protections to not just apply to equal pay related to gender but also to other protected classes. The Federal Equal Pay Act just applies to pay discrimination between men and people of the opposite sex.
Some states have gone further. Here in California, we’ve added race and ethnicity. Some states have added all protected classes. So there’s a variety of different laws that have been passed in different states in this area.
MC: I want to focus on pay transparency, which you touched on. Decades ago, we knew less about this because people didn’t talk about what they made as much as they do now. You didn’t ask somebody, and if you did, it was like talking about politics or religion. But with pay transparency rules now, in some cases, companies have to disclose what they’re paying, they have to disclose salary ranges. Has the increase in pay transparency helped at all to end pay discrimination, or has it just made it easier to find that pay discrimination?
JS: There’s a few different answers to that question. First, when we talk about pay transparency protections, there are a lot of different aspects of pay transparency.
One important part of the pay transparency bundle of laws is in restricting employers from imposing what we often refer to as pay secrecy rules. It is common for an employer to impose a rule that says employees cannot discuss or disclose wages.
That is, I would say, unlawful under the Federal National Labor Relations Act, but some states have proactively addressed this by passing further protections to explicitly say employers cannot impose these types of pay secrecy rules and cannot discipline or retaliate against workers when they talk about pay.
And that’s an important piece of the pay transparency discussion because so often gender- and race-based pay disparities are out of sight. It’s seen as taboo to talk about pay, people don’t feel comfortable talking about pay. Even for me, I’m constantly talking to people about talking about pay and I still feel a little uncomfortable.
It’s a changing norm, but it’s still a process. But at least in this way, workers hopefully will feel more empowered to talk about pay amongst themselves, which will help to uncover wage gaps that they may not have been aware of.
The second bucket, which I know is getting a lot of attention now because it’s really increasing in momentum in the states, is salary-range posting requirements.
Some of these laws require employers to include the salary range in all job postings. Some states require employers to provide the salary range for a given position to a candidate under certain circumstances—if they ask for it or if they’ve had an interview, for example. They vary, but overall the idea is to give candidates and also existing employees more information about what the possible pay range for a given position is to try to uncover if they may be being underpaid, and / or potentially negotiate higher pay where they may not have had the confidence to do that or the information they needed to be able to do that before.
The laws are relatively new. We need to wait a little longer for some of the research, but some of the studies that have been done since they’ve been passed have shown that in states with pay transparency laws, there has been a slight closing of the wage gap.
I put the prior salary bans in that pay transparency bucket, and they’ve been on the books a bit longer. There are a few different studies that actually show that in states that have implemented these prior salary bans, there has been the intended effect of closing gender and racial wage gaps. So I think we need a little more time to look at the effect of all these laws, but the initial results are showing that they are having the intended effect—to close gender and race wage gaps.
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IV. JUMPING FROM PRIVATE PRACTICE TO A NON-PROFIT CIVIL RIGHTS ORGANIZATION
MC: Now I’m going to jump into questions from the audience. What prompted you to make the jump from private practice to a civil rights organization? And did working in private practice help once you got there?
JS: Working at the private plaintiff side firm was a great experience because it was a class-action firm. Understanding the power of class actions to try to address discrimination and wage theft in a comprehensive way and in a way that has lasting impact within companies was a really important step in my career path. I learned class-action law and also observed the broader effect you can have when you bring a class action, achieving restitution and justice and compensation for a broader group of workers—some of whom may not have even known that they had a claim.
I also learned about ensuring that there was some form of programmatic relief at these companies to ensure that there were not ongoing issues of pay equity, or pay discrimination or other forms of discrimination or wage theft. So that was an important lesson.
For me, going back to the nonprofit world felt like going home, because I worked in nonprofits before becoming a lawyer. In the non-profit realm, I still do class and collective-impact cases and have used that experience from the private side to do those same types of impact cases in the public interest realm.
MC: Who, in your mind, needs to pay attention ASAP to narrow the pay discrimination gap? Is it senior executives? Is it hiring managers? Legislators? All of the above?
JS: I think it’s really all of the above. As I mentioned, the wage gap remains persistent and really harmful for women, particularly women of color. When you think about women earning less than their male counterparts, and again, much less in the case of women of color, that not only harms their ability to pay for basic necessities like rent and food, diapers and bills, it also keeps them from being able to invest for retirement. And it contributes to overall higher poverty rates for women and families. And so it really is not just a women’s issue but an issue for families and communities.
There are so many contributors to the wage gap. There is pay discrimination—women being paid less than men for doing the same or substantially similar work. There is occupational segregation, women—particularly women of color—being concentrated in minimum-wage and low-wage jobs and industries.
There are issues of just straight-up bias and discrimination and who’s being hired where. Because there are so many contributors to the wage gap, it really does require employers to take proactive steps to root out pay discrimination, to close gaps, and to take proactive steps to ensure that they are preventing pay discrimination from continuing into the future.
It definitely takes legislators to keep passing stronger and more robust laws to better protect against pay discrimination and other aspects as well—harassment and sexual harassment. These forms of harassment and discrimination serve to push women out of jobs, which of course affects their income and economic security. So we need more robust laws in that regard as well.
And then more generally, it’s important that the broader public be more aware of pay discrimination and pay equity. And I do see that it is becoming more discussed in the mainstream, and that’s a good thing, because more people talking about pay equity and the fact that we still have this ongoing gender and racial wage gap is what it’s going to take to continue pushing for more momentum in the legislative level.
I think we are seeing more and more clients and consumers demanding more of the companies that they work for and frequent, which is a good thing. We have investors putting more pressure on companies and shareholders to take proactive steps in this realm. So I think we’re on the right track, but it will take a lot more effort to truly root out gender and race-based pay disparities in the U.S.
MC: Let’s pretend I’m an in-house lawyer. I give you a call and I say, Jessica, tell me how to put guardrails in place to remedy pay discrimination and avoid it in the first place. What can I do?
JS: I think the first step is doing a pay audit.
That is now required in two states. Larger companies in California and Illinois to some extent have to conduct pay data audits and then report their pay data to state agencies. But even if you’re not in one of those states, I think it’s really important that companies conduct a pay audit.
And there are, of course, a lot of external companies that can help with that and are trained in how to do that so that employers can be aware of what their pay situation is. We often talk about the fact that you can’t fix what you can’t see. So No. 1 is being aware of where there are pay disparities, and then of course taking steps to close them.
The famous case of Salesforce was that Mark Benioff conducted a pay audit and found that there were significant gender-based pay disparities and invested a lot of money to close them. So I think that’s No. 1.
And then really doing a review of what the internal processes and procedures are for recruitment and hiring to ensure that those processes and procedures enable women and people of color and others who might not be considered for higher paid jobs to be considered, ensuring that you have objective processes for hiring managers and others to set pay, so that implicit bias doesn’t creep in, in terms of what people are being paid, offered for pay, which we know despite best intentions, there is a lot of implicit bias that affects the pay that is offered to women and people of color.
So really implementing these types of processes and objective criteria is important. And then I think just overall, a company needs to make an open commitment to their employees that they are committed to these issues. That will ensure that employees feel comfortable asking about pay and talking about it. And even if it’s not required in their state or jurisdiction, posting salary ranges and providing existing employees with salary ranges is an important step that employers can take to help ensure that employees have the information they need to assess what they’re being paid or what they should be getting paid.
MC: Two more questions for you. One about COVID and then one about your day-to-day work. In the midst of COVID, and even now to today, there’s been a great resetting in what we think about work and what demands we make of work and what demands we allow work to make of us.
My assumption would be that you might see a blip in the data that people would say, you know what, I’m not taking that offer. You’re going to offer me what I’m worth. Does the data show any of that? Has COVID helped at all in this?
JS: One silver lining to the COVID pandemic is this issue of employers being made aware that workers are able, in many cases, to work from home or have a more flexible workplace and work schedule, and still be able to produce to the same level, maybe even be more productive.
Now, of course, this is not possible for a large number of workers, and that’s just an unfortunate reality. Many people, especially low-wage workers who maybe work in the service industry, don’t have that luxury, which is a whole separate discussion. But within the industries where workers can do their job remotely, I think employers really have learned that you can, in fact, give workers flexibility and they can still do their jobs well, and this is important for all workers, but especially caregivers. People who are taking care of children or elderly relatives or disabled relatives who are still disproportionately women; having a flexible workplace where they can work remotely or have flexible schedules really is a critical aspect of ensuring that caregivers are able to continue working.
And so I think that realization on the part of employers has been really key. We know that there has been, and still is, pervasive discrimination against caregivers. I’m hopeful that employers have seen that you can be a family caregiver and still do your job if you’re given some more flexible scheduling and / or accommodations that enable you to both do your job and care for your family.
MC: Final question. Let’s talk about Equal Rights Advocates, for whom you are doing hard work on this topic, day in and day out. When does an organization like Equal Rights Advocates get involved, and what does your day-to-day workday look like working there?
JS: Wow. My day-to-day workday really depends on the day. In my role, I am leading our policy advocacy. So a lot of meetings with legislators and staff and community advocates, but we really believe that all of our work at Equal Rights Advocates is led by and grounded in our clients and our community partners.
And so all of the work we do, whether it be litigating cases or passing laws, is always informed by the issues that we are seeing on the ground and hearing from our clients or our community partners about what is needed on the ground.
I would encourage anyone who’s interested to check out the Equal Rights Advocates website because we have a lot of information about the type of work that we do for women and people of other gender identities and girls and other students who have experienced issues at work and at school.
And there are a lot of ways to get involved with our work. If you’d like to support us and / or be part of our action team, all of that is on our website for anyone who’s interested—equalrights.org.
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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on September 27, 2023.
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