Females’ pay inequity in tech industry needs more than ‘karma’ to be corrected

This week's article is written by my associate Menaka Fernando, who works within our employment division. She approached me about a very serious, and flagrant, disparity between women and men in terms of compensation in the high-tech industry and asked me if she could write a column to assist women who find themselves trapped in Silicon Valley's gender pay gap. I thought it was a fantastic and timely subject that is of particular import to us here in the Bay Area. It is a situation we here at the Dolan Law Firm hear about, and fight against, routinely.

From Menaka: Last week, Microsoft CEO Satya Nadella made some troubling remarks about women asking for raises. During a conference promoting women in technology, Nadella was asked what advice he would give women who were hesitant to ask for a raise. Nadella responded that “[i]t's not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along.” He added that women who do not ask for a raise can rely on their “good karma” to receive better pay.

Nadella's advice that women trust in the system is particularly troubling when this system has and continues to fail women when it comes to closing the gender gap. In 2013, among full-time, year-round workers, women were paid only 78 percent of what men were paid nationwide. In California, the picture is not a whole lot brighter — women were paid only 84 percent of what men were paid last year.

Nadella's remarks highlight the tech industry's diversity problem. And as the recent demographic disclosures by major tech companies reveal, the problem is a dire one. Microsoft's workforce, for example, consists of 71 percent male and 29 percent female employees. Other large tech companies don't fare much better: Google's workforce is 70 percent male, 30 percent female; Apple is 70 percent male, 30 percent female; Facebook is 69 percent male, 31 percent female; and Twitter is 70 percent male, 30 percent female.

When looking specifically at leadership positions, the numbers are even worse. At Twitter and Google, for example, only 21 percent of leadership positions are filled by women. For the few women who do enter the tech workforce, they often are faced with a male-dominated culture (often referred to as a “brogrammer” culture) that is more locker room than 21st-century boardroom. A recent lawsuit against Tinder that was brought by the company's former female vice president for marketing appears to show that even high-ranking women in the tech industry are not immune to a discriminatory culture of sexual harassment and sex discrimination at the hands of top male executives.

It is in this atmosphere that men at the helm, like Nadella, are discouraging women from asking for raises, and ultimately, equal pay.

Women who are not receiving equal pay for equal work do have remedies under the law. The federal Equal Pay Act and the state equivalent, the California Equal Pay Act, provide that an employer may not pay lower wages to female employees than it pays to male employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility. The EPA was enacted in 1963. In 2009, President Barack Obama signed into law the Lily Ledbetter Fair Pay Act, which states that the 180-day deadline for filing an equal-pay lawsuit resets with each new paycheck affected by the discriminatory action. The term wages under the EPA includes salary and benefits such as medical insurance, life insurance, retirement benefits and leave.

Discrimination based on sex is also prohibited under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act. Unlike Title VII and the FEHA, under the federal or state EPA, an employee does not need to prove that the employer intended to discriminate. The EPA allows for recovery of back pay. Under Title VII and the FEHA, an employee may recover economic losses, pain and suffering and punitive damages in addition to back pay.

While the tech industry waits for “karma” to achieve equality, it is up to employees — male and female — to assert their own rights and demand that they be treated fairly under the law.

Thanks, Menaka. Women don't need to have faith that eventually karma within the tech industry will grant them their equal rights and equal pay. Sometimes karma comes in the form of legal action — and, as trial lawyers, we like to think that we are karma's little helpers.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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