26

January, 2023

Reconsider Job Requirements to Diversify Your Talent Pool

Following established techniques and methodologies can achieve efficiencies, assure consistency and produce positive outcomes.  But sometimes we need to challenge our historic approach, analyze the rationale behind certain standards and methodologies, determine whether those rationales are still viable, and make changes as appropriate.  Organizations facing a talent shortage and those looking to diversify the workplace may now be at such an inflection point.

Diversity Starts with Hiring Decisions

Hiring processes and decisions are the cornerstone of any initiative to diversify a workforce.  President Lyndon Johnson recognized this nearly 60 years ago when he issued Executive Order 11246, which continues to prohibit federal government contractors from discriminating in employment decisions based on certain protected characteristics and requires them to take affirmative action in their hiring and promotion decisions, to ensure the provision of equal employment opportunities.  Hiring also has been the focus of more recent government initiatives to achieve equal employment opportunity, as exemplified by the launch one year ago of a “Hiring Initiative to Reimagine Equity (HIRE)” by the Equal Employment Opportunity Commission (EEOC) in partnership with the Office of Federal Contract Compliance Programs (OFCCP) as part of its Equity Action Plan to advance racial equity and support for underserved communities.  If you do not bring a diverse group in the door, then there can be no diversity in any other aspect of the organization’s workforce.

Conventional Wisdom and Hiring Criteria

Educational background, training certifications and past employment history have long been our primary selection criteria when reviewing job candidates.  We often use these factors as a proxy for competence or even of superior ability, presuming that:

  • college-level education equates to higher intellect than those with a high school diploma;
  • a degree from a selective college or university indicates an even higher level of intelligence and accomplishment;
  • courses of study and advanced degrees from universities reflect specialized knowledge, intellectual rigor and commitment;
  • training certificates prove interest in a particular specialty;
  • gaps in employment are red flags of poor past work performance or personal issues that encroach on commitment to the work; and
  • prior industry experience offers better training than work in other fields.

Each of these are stereotypes – categorical assumptions, based on preconceived notions.  Stereotyping is a technique that we use to filter and organize the universe of data we may encounter.  In the abstract stereotyping is neither good nor bad, but there are exceptions to every stereotype, and some may be flat out wrong or predicated on inappropriate, discriminatory assumptions.  Relying too heavily on stereotypes in our hiring criteria and processes can lead us to overlook desirable candidates.

Ask “What If”

Sometimes particular degrees, training or experience is critical to performing a particular job.  Mere interest in law or medicine, for example, or having taken some courses in those subjects, will not qualify an individual to receive certification from professional licensing boards that are necessary to practice in those fields.

Often, though, there is opportunity to explore other considerations.

  • What if a candidate for a sales position did not attend or complete college because that candidate needed to transition more immediately into the workplace to help support the candidate’s family? If the candidate has proven work history, should the lack of a degree be an exclusionary factor?  And even if the candidate does not have proven work history, if it is an entry-level job why is a college degree required?  Is there any other way in which the candidate can demonstrate ability and potential?
  • What if a candidate’s family is legacy at a prestigious academic institution and the candidate was accepted largely on the coattails of past relatives’ achievements? Is that candidate more qualified than someone who bootstrapped their way through a state university and graduated in the middle or upper range of the class?
  • What if a candidate had to step out of the workforce due to a serious health condition that a prior employer could not or would not accommodate, and which has now been fully resolved? Does a prior health issue mean the candidate can never be a productive, hardworking contributor to the workplace?
  • What if the candidate chose to leave the workplace for a period of time due to caregiving responsibilities? Are there any skills or values that, while perhaps uncompensated, the candidate might have gained during that period that would be relevant to the position for which the candidate has applied?
  • What if a candidate was fired along with most of the division in a major restructuring, and the termination coincided with a serious economic downturn? Or a former employer relocated its operations across the country and the candidate had family obligations that precluded moving with the former employer?  Are either of those circumstances a negative reflection on the candidate’s skills and experience?

Many hiring managers might reconsider their preconceived assumptions in those circumstances, but if screening criteria are set too rigidly they can filter out candidates at the application stage, before they would ever have the opportunity to meet with a hiring manager.

Diversity Implications of Rigid Screening Criteria

Testimony provided at the EEOC’s HIRE roundtables reflect the implications for a diverse workforce when baseline hiring criteria are too rigid.  Among those screened out of the workforce based on a period of unemployment, for example, are:

  • workers who were pregnant or had caregiving responsibilities at some point;
  • disproportionately people of color; and
  • older workers who may have been impacted by past layoffs.

Similarly, degree requirements or preferences based on academic institutions attended can disproportionately screen out people of color and certain socioeconomic groups.

Recognizing those outcomes, the EEOC and OFCCP are actively promoting skills-based hiring and encouraging employers to consider alternative credentials for job candidates.  Last year, the state of Maryland announced that it would eliminate a four-year college degree as a job requirement for thousands of state jobs, and consider workers skilled through alternative routes, including apprenticeships and certification programs.  In making the announcement, the state reported that nearly half of the workers in Maryland are skilled through these alternative measures.

Maintaining High Standards

Reconsidering historic job criteria means applying different measures of skills and credentials and recognizing certain benchmark indicators of high achievement are not necessarily a proxy for identifying superior talent.  It does not mean an employer has to lower its standards.

I graduated from a regional law school, and subsequently completed an advanced law degree at an ivy league school.  The institutions I attended trained me on the law from different perspectives, each of which I found to be incredibly valuable.  I was no greater a scholar after graduating with my ivy league LLM than I was five years earlier when I earned my law degree.  Yet even now, 23 years after earning that second degree and notwithstanding many years working in various capacities, people will call out the ivy league degree on my bio as the hallmark measure of my accomplishment.  I am grateful for any doors that degree helps open, but I spent enough years having to prove myself without the stellar credential to attest that talent comes in all forms and from a variety of places.  As talent pools dwindle, broadening the net to reconsider hiring criteria opens the door to more candidates and opens the potential to develop a more diverse workforce.

By Tracey I. Levy

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17

January, 2023

Workplace Investigations: What Is “Bullying”?

There is a slippery slope between what may be considered sub-optimal or bad management practices, “bullying,” and “harassment.”  When behaviors prompt an employee complaint, workplace investigators need to evaluate where a supervisor’s conduct falls on the spectrum.  That analysis largely turns on an assessment of the target and nature of the behaviors, centered on the organization’s workplace policies.

Distinguishing Bullying from Harassment

As a workplace trainer, I regularly advise that the only distinction between bullying and harassment is that harassment is based on a protected characteristic, while bullying is not.  Actions like physical contact, threatening or insulting comments or gestures, and exclusion or isolation may prompt complaints of bullying, and they are equally likely to result in complaints of harassment.  The behaviors are the same, but the target differs.

An investigator presented with those types of reported behaviors first needs to determine whether they actually occurred.  If it seems more likely than not that they did occur, then the issue becomes one of determining whether an individual has been singled out for that treatment based on a protected characteristic, or whether the respondent engaged in those behaviors based on personal dislike of the complainant or indiscriminately toward a range of individuals with differing characteristics.  In other words, is this individual a so-called “equal opportunity jerk?”  That determination is not as simple as it may seem.

Considering the Target

Non-sexual behaviors, such as yelling at an employee, throwing papers at her and reassigning her to a different work group may be considered sexual harassment if they are targeting an employee because she is a woman.  The investigator needs to consider why the behaviors occurred, whether others have experienced similar behaviors from the respondent, and whether those others possess the same or different characteristics from the complainant.

Even if an investigator finds that a supervisor yells and makes demeaning comments to individuals across the gender spectrum, however, that may not be determinative on the question of whether the conduct is harassment or bullying.  Recently, for example, I met with a complainant who conceded that a manager was harsh and very critical of both the men and women on the team but asserted that the level of hostility was more pronounced toward women, and that only the women were belittled in a public setting.  As an investigator, therefore, it was not only the perpetuation of hostile behaviors targeting individuals across the gender spectrum, but also the severity of those behaviors as directed at different groups, that I needed to consider.

Anti-Bullying Policy Language Can Obviate the Distinction

Organizations can avoid this level of hair-splitting by adopting broader policies related to appropriate workplace conduct.  Policies that require employees to treat each other with respect and dignity or to maintain a respectful work environment, as well as those that prohibit both harassment and bullying, capture these types of offensive behaviors regardless of who is being targeted or for what reason.  Under such policies, the investigator can just focus on the behaviors themselves and, if they are found to occur, the organization has grounds to take responsive disciplinary and remedial action.  Whether the behaviors also give rise to a legal claim of harassment then becomes a question for litigators to resolve, and only if the matter proceeds to litigation.

Narrowly-defined policies can place organizations in a defensive posture.  Organizations that identify and resolve issues in a manner that sufficiently satisfies the complainant may be able to avoid subsequent legal action.  Organizations that decline to act unless offensive behaviors are found to be based on a protected characteristic are more likely to have a dissatisfied complainant who will pursue legal remedies to address the behaviors.

Bullying or Bad Management?

Investigators may also need to analyze behaviors at the other end of the spectrum, to determine whether a supervisor has engaged in poor management, or whether the supervisor’s approach crosses the line into bullying behavior.  In this context, the starting point needs to be the organization’s policies, and how they define bullying behavior.  Some organizations have detailed policies that provide a definition of bullying with specific examples, and those provisions should guide an investigator’s determination as to whether behaviors violate the policy.

Many organizations have less explicit policies against bullying, or none at all.  The challenge in those situations is that not every harsh or critical communication by a manager qualifies as “bullying.”  The nature of the behavior, whether it is targeted, and the reason for the behavior are often critical to determining whether a supervisor has crossed the line between appropriate feedback or discipline for an employee’s violation of workplace conduct standards, and inappropriate behavior.

Receiving critical feedback usually does not make an employee feel good and may cause discomfort or upset.  Some managers also deliver that type of message more delicately than others.  In general, we consider critical feedback to be appropriate manager behavior and not bullying because it is motivated by legitimate business considerations.

At times, though, even if critical feedback is warranted, the manner in which it is delivered may be inappropriate.  The distinction is reflected in existing legal definitions of “abusive conduct,” which require a certain degree of malevolence or hostility before workplace behaviors will be considered to be bullying.  Tennessee, currently the only state that legally prohibits abusive conduct by private employers, defines it as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.”  California, which requires harassment prevention training to expressly address bullying prevention, defines abusive conduct as that engaged in “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  Both states provide examples that include:

  • repeated verbal abuse such as derogatory remarks, insults and epithets;
  • threatening, intimidating, or humiliating verbal or physical conduct; or
  • gratuitously undermining or sabotaging a person’s work performance.

While employers can always define bullying under their own policies more broadly than the state laws, when the policies lack a clear definition, these laws provide a helpful framework for investigators delineating between bullying and bad management.

Policies as Guideposts

As with the distinction between harassment and bullying, organizations that adopt broad policies related to workplace conduct can make clear to employees and supervisors – in advance – how the organization defines the boundaries of permissible workplace behavior.  Policies that address bullying with a definition and examples of the types of behaviors considered to be inappropriate provide helpful guideposts as to the organization’s expectations and the norms for appropriate conduct.  Those guideposts can also inform workplace investigators’ determinations of when behaviors have crossed the line between bad management and bullying.  Without guideposts, it’s a slippery slope.

By Tracey I. Levy

 

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9

January, 2023

Contractor Agreements Subject to Federal/State Law Prohibitions on Confidentiality and Nondisparagement

In yet another example of laws blurring the distinction between employees and independent contractors, organizations need to beware that the prohibitions on confidentiality and nondisparagement agreements embodied in the federal Speak Out Act and various state laws often are equally applicable to independent contractor agreements.  The motive behind these prohibitions is driven by the egregiousness of the workplace behaviors that have been disclosed in the past several years, and the loopholes in existing laws that enabled such behaviors and kept them from being reported.  There are, however, significant differences in the nature of the relationship between an employee and an independent contractor, which may lead organizations to incline toward retaining confidentiality clauses in agreements with their contractors to the maximum extent possible while complying with the new laws.

The Business Need for Confidentiality Assurances

Independent contractors, which may include consultants, gig workers, and others providing services to support an organization, typically have a more temporal connection to the organization by which they have been contracted than do employees.  They may be providing services to multiple organizations simultaneously or serially, including in the same industry and among competitors.  In order to effectuate the work for which they have been retained, independent contractors may also need access to, or otherwise be privy to, confidential, proprietary, or trade secret information pertaining to those organizations.

Organizations thus have significant, valid reasons to require independent contractors to execute agreements, as a condition of providing the contracted services, that impose confidentiality, nondisparagement and other restrictions.  Typically in the past, organizations have drafted those agreements broadly, to protect their competitive information.  Federal and state laws now require more precision, and failure to adhere to the laws’ strictures risks invalidating the entire confidentiality or nondisparagement clause, thereby leaving the organization exposed to the sharing of its competitive information with other organizations or the public.

Standard Contractor Templates May Violate Federal Law

The federal Speak Out Act requires organizations to ensure their confidentiality and nondisparagement clauses with independent contractors do not limit the contractors’ ability to disclose information related to a sexual assault or sexual harassment dispute.  Provisions that may run afoul of the law include those that:

  • broadly restrict disclosure of “all information that the organization makes available to the contractor;”
  • prohibit disclosure of “Confidential Information,” defined to include not just proprietary information and trade secrets, but also “information about employees and employee relations, training manuals and procedures, information about recruitment method and procedures, employment contracts, employee handbooks…” and similar employment documents and information;
  • define “Confidential Information” as information that that has been marked as “confidential” or “proprietary,” that has otherwise been identified as confidential or that, “due to its character and nature, a reasonable person under like circumstances would treat as confidential;” or
  • prohibit disclosure of “Personal Information,” defined to include information that identifies, relates to, describes, or could reasonably be linked with a particular individual.

None of these examples, taken from real contractor agreements, were written with an intent to keep secret incidents of sexual harassment or sexual assault that might occur in the workplace.  But each of them may, in fact, have that effect, which is why it would be prudent for organizations to review their contractor agreement templates and revise them to conform to the new federal law.

State Laws Also Impose Limits on Contractor Agreements

As discussed in the second article in this series, various states have adopted their own restrictions on confidentiality and nondisparagement clauses.  In some jurisdictions those restrictions apply equally to agreements with independent contractors.  Organizations should note, for example:

  • New York’s restrictions on any agreement to resolve a discrimination claim that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment, which extends to protect anyone with a viable discrimination claim (including independent contractors);
  • Illinois’s restrictions on all agreements that preclude “truthful statements” regarding alleged unlawful harassment, discrimination or retaliation, which apply to both employees and non-employees (contractors and consultants); and
  • Washington state’s restrictions on provisions that limit employees (defined to include independent contractors) from disclosing conduct, or the existence of a settlement involving conduct, that the employee reasonably believed under state or federal law to be a violation of EEO laws, a wage and hour violation, sexual assault, or otherwise against a clear mandate of public policy.

More of these laws are being passed each year, and states that were early adopters have been looking to other locations and amending their laws accordingly to impose greater restrictions on organizations.  Organizations that wish to protect their confidential and competitive information may need to revisit their existing agreements and consult with legal counsel to ensure they are legally enforceable and their business interests are protected as much as possible.

By Tracey I. Levy

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5

January, 2023

Hiring Nationally? Multi-State Employers Must Carefully Navigate Varying Legal Restrictions on Confidentiality and Nondisparagement Clauses

Viewed as a stumbling block or more nefariously in relation to the reporting and investigation of #MeToo complaints, state legislatures across the country have been limiting or outright prohibiting employers from subjecting employees to confidentiality and nondisparagement clauses.  The challenge for employers operating in multiple states that may wish to maintain some version of a confidentiality or nondisparagement clause in agreements with their employees is that variations in the scope and terms of these restrictions require agreements tailored to each employee’s work location, or adoption of a bare bones form of confidentiality or nondisparagement agreement.

Federal Speak Out Act Sets the Minimum Requirement

As discussed in our prior blog article on this subject, the federal Speak Out Act applies in the context of agreements entered into before an employment dispute has arisen.  The law renders unenforceable any confidentiality or nondisclosure clause, or any nondisparagement clause, entered into with an employee that limits the employee’s ability to disclose information related to a sexual assault or sexual harassment dispute.  The Speak Out Act further provides that it is not meant to supersede any state or local law governing confidentiality or nondisparagement clauses that is more protective of individual employees, and numerous states have passed or updated laws that impose restrictions in this context.

States Prohibiting Restrictions Related to EEO Concerns

New York State, New Jersey and Illinois generally permit employers to have confidentiality and nondisclosure agreements with employees, but they exemplify the approach of prohibiting agreements from restricting disclosures related to concerns under the equal employment opportunity (“EEO”) laws.  New York’s version is perhaps the most narrowly-tailored of these restrictions.  It prohibits employers from entering into any agreement either in a pre-dispute context or to resolve a discrimination claim that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment.  As discussed in our prior blog article, the New York law allows exceptions to these restrictions through special notice to the employee and other procedural requirements.

New Jersey law renders unenforceable a confidentiality clause in any employment contract or settlement agreement that would effectively conceal “the details” relating to a claim of discrimination, retaliation or harassment.  New Jersey’s law additionally provides that, if an employee publicly reveals enough information about a claim of discrimination, retaliation or harassment so as to render the employer reasonably identifiable, then the employer will no longer be bound by any confidentiality restrictions.  Employers are required to include in every settlement agreement resolving an EEO claim a bold, prominently placed notice advising the employee of the consequence of the employee’s public disclosure if the employer is thereby reasonably identifiable.

Similarly, Illinois law renders unenforceable any agreement that precludes an employee from making “truthful statements” regarding alleged unlawful harassment, discrimination or retaliation.  Illinois also makes an exception to this limitation where the employer can demonstrate that the confidentiality clause was negotiated as a mutual condition of employment or continued employment and is embodied in a written agreement that allows employees to provide truthful statements to government agencies, as required by law, regulation or legal process, or for purposes of receiving legal advice.  With respect to nondisclosure clauses in settlement or termination agreements, Illinois adopted an approach similar to that in New York, permitting a confidentiality restriction where demonstrably desired by the employee, the employee has been given notice of the employee’s right to consult with an attorney, the employee is not waiving any prospective claims, and the employee has been granted 21 calendar days to consider the agreement and seven calendar days to revoke acceptance of the agreement.  The employee also must still be able to testify in a proceeding related to unlawful employment practices when subpoenaed or in response to a written request by a government agency or the legislature.

States Prohibiting Restrictions Applicable to All Unlawful Workplace Concerns

California and Washington exemplify a broader approach.  California prohibits employers from requiring employees to sign a nondisparagement or other agreement at any point in the employment relationship, for any form of consideration, that denies the employee the right to disclose information regarding “unlawful acts in the workplace.”  The law defines those “unlawful acts” as including information pertaining to harassment or discrimination or “any other conduct that the employee has reasonable cause to believe is unlawful.”  If an employer includes a clause in an employment agreement that limits disclosure of any type of conditions in the workplace, California dictates specific language that must be added to the agreement to advise employees of their rights with regard to disclosing “unlawful acts.”

Washington State recently updated its law to preclude a provision in any agreement with an employee that limits disclosure of conduct, or the existence of a settlement involving conduct, that the employee reasonably believed under state or federal law to be a violation of EEO laws, a wage and hour violation, sexual assault, or otherwise against a clear mandate of public policy.  Like other states, Washington renders unenforceable any clause that violates the law, but it goes further in two respects.  First, Washington’s law applies retroactively.  Second, with respect to agreements adopted after the law took effect June 9, 2022, employers who are found liable for violating the law face civil liability for the greater of actual damages or $10,000, as well as reasonable attorneys’ fees and costs.  As an additional unique twist, Washington State’s law protects any individual who is a resident of the state, regardless of the individual’s location of employment.

California and Washington both permit employers to enforce confidentiality with regard to the amount paid in settlement of a claim.  In addition, those two states offer employers an exception to the nondisclosure and nondisparagement clause restrictions with regard to agreements settling certain pending claims and complaints.  Washington provides an exception to permit confidentiality clauses only for settlements of legal claims.

California’s exception extends to negotiated settlement agreements to resolve underlying claims filed in court, before an administrative agency, through alternative dispute resolution, or an employer’s internal complaint process.  However, a different California law still prohibits including in settlements of civil actions or administrative complaints based on claims of workplace harassment or discrimination any provision that precludes disclosure of factual information related to the claim or complaint.  At the employee’s request, such settlement agreements in California can include a confidentiality clause that shields the identity of the complainant employee and all facts that could lead to the discovery of the employee’s identity.

Taking a National Approach

Given the variations among the state laws, and the unique language dictated by various states where confidentiality or nondisparagement clauses are incorporated into agreements with employees, organizations that have employees across multiple states should work closely with legal counsel on the inclusion of any provisions in those agreements that require confidentiality or prohibit disparagement.  Language on confidentiality that may be permissible, for example, in an employment agreement in one state is likely impermissible in a state like California or Washington.  An employer might be able to employ that same confidentiality language in a settlement agreement with an employee in California or Washington but find the language impermissible in a settlement agreement with an employee in a state like New Jersey or Illinois. The rules of each jurisdiction matter, as does the context in which the agreement is being proffered.

By Tracey I. Levy

 

 

 

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8

December, 2022

Is Pay Transparency Just Legislators Throwing Arrows at a Dartboard, Missing the Root Problem

What if all these new legislative initiatives at pay transparency are solving the wrong problem?  Touted as a solution to pay inequity, a recent study lends much reason to question the viability of that approach.  And from personal experience as a “big law” associate,  I know that “transparency” is not always as clear as it may seem.

Can Pay Transparency Hit the Bull’s-Eye?

I have been having a lot of conversations about this subject recently. I  have spoken with reporters, some “on background” and some for articles in which I have actually been quoted, conversed with colleagues about how we think the latest laws will play out, and had thorny practical discussions with my clients who are struggling to understand just what they need to do in order to be in compliance with laws that are incredibly localized when their recruiting area is incredibly diffuse.  I am particularly proud of and grateful for my recent conversations, posted in Forbes.com (New Wage Transparency Law Has Overlooked Problems and Why Your Company May Need A ‘No Haggle’ Rule) with award-winning author, coach, mentor and researcher of the secrets to professional success Dr. Ruth Gotian.  All these conversations are driven by recent legal changes, which in certain jurisdictions now mandate that employers disclose and in some instances affirmatively and publicly publish, the range of what they are willing to pay for any particular job opening.

I have read commentary from many others, including colleagues who I hold in high esteem, on this very same subject. And there is one statistic that I found buried in the midst of a recent article published by SHRM that has me feeling more discouraged than ever and wondering whether legislators are simply throwing arrows at a dartboard and hoping for a bull’s-eye.

Clarifying the Cause and Meaning of “Pay Inequity”

The federal government statistics we use when we refer to a pay equity gap are based on the average earnings of individuals in various demographic categories, without controlling for related business factors. Payscale has reported that when controlled for job responsibilities, education and experience, women earn 99 cents for every dollar earned by a man, and the pay disparities among men of different races similarly only differ within the range of a penny.

So do we have a serious pay inequity problem? Job responsibilities, education and experience have long been recognized as entirely legitimate, nondiscriminatory factors that may be considered in making employment decisions. While facially non-discriminatory, factors such as education can also be misused as a proxy that excludes or marginalizes individuals of color who otherwise possess abundant performance potential.  But absent statistical proof of a disparate impact, and evidence undermining the legitimacy of the criterion applied, our legal system does not recognize differences in treatment based on those factors to be evidence of discrimination. And if differences in pay based on education, job responsibilities, and experience are widely recognized to be lawful, then what is it that we expect pay transparency will achieve?

Back in the Day…Lessons from Personal Experience

Back when I was an associate at a large law firm, I took comfort in the lockstep pay scale that governed my first eight years with the firm. It was my law school graduation date that determined how much I would be paid, and I knew the same was true for the other men and women associates in the offices surrounding me.

There are of course a few deviations even in the most lockstep of systems, and in law firms associates may be told they are taking a step back by a year or two in the pay scale based on intervening work experience before joining the firm that may not directly relate to the work of the department with which they are now associated. But it was all transparent, or seemingly so, and I never had reason to question whether I was being paid differently as a woman.

I made a conscious choice relatively early in my large law firm career to scale back my work schedule, first to allow for advanced legal studies and then to care for my children, and my compensation continued along the lockstep track but with a proportionate reduction that aligned to my reduced billable hours commitment.  That too was transparent and I was and remain so grateful for the opportunity I was given to continue my career with the firm in that capacity.

But all was not quite as transparent as it seemed. I had a 1200 hour per year billable expectation, and I made it my business to meet and usually exceed that billable target every single year. My compensation was in line with that target. What was less apparent was that some associates who were classified as full-time employees, and therefore expected to meet a 2000 hour per year billable target, did not consistently achieve their objective. I know anecdotally from my work over the years with other large law firms that those who fall regularly short of the billable hours target receive taps on the shoulder and a nudge to secure alternative employment outside of the firm. There is only so long that they are carried on a more lucrative financial wave than that which applied to people like me who worked (and were paid) for a part-time schedule.

So I know firsthand what pay transparency looks and feels like, and I know it not to be a panacea that achieves true equality. The point that stymies me is that if our societal problem pertains to differences in pay that align to differences in the type of work we are performing, the training we received before engaging in that work, and the years of experience we have developed, then how on earth is pay transparency going to change that societal problem? It feels instead like additional window dressing to claim we are solving a problem when what actually we are doing is likely to have little or no impact.

Let’s Name the Real Problems

As a step in a forward direction, I suggest we begin by naming our actual problems:

One:

Women and certain marginalized groups are more likely to take jobs that fall on the lower end of the overall societal pay scale.  As a result, their lifetime earnings are likely to be less than those of white men.

Two:

Women and certain marginalized groups are less likely to accrue as much seniority in the jobs that they take because life factors may necessitate their temporary exit from the job market, or their experiences at work may be such that they eventually choose to leave, often for less lucrative positions, rather than stick it out in an environment where they do not fully feel they belong.

We Need Different/Better Solutions

The existence of these specific problems is not new news. But the laws on pay transparency seem entirely irrelevant to solving them.  Instead, we need to take several reflective steps back as a society. We need to give serious thought to whether we are under-compensating people for caretaker and other types of roles that currently fall on the lower end of the pay spectrum.  Supply and demand helps to drive wages, but so does the government, and reimbursement rates for child care, elder care services, and preschool education that leave people just above the poverty level send a message that we are looking to do these things on the cheap and do not place as much value on them as a society.

As for our workplaces, our laws against harassment and discrimination can really only go so far. My earliest exposures in corporate America to what was then entitled diversity and inclusion initiatives was greatly underwhelming. They felt like lip service, comprised of special recognition days and a handful of guest speakers over the course of a 12 month period and I could not imagine how any of that made those who were under represented feel wanted and included.  But D&I has evolved to Diversity, Equity, Inclusion and Belonging, and more recently I have had the good fortune to work with many talented, insightful leaders who are pressuring organizations to turn a mirror on themselves, to look at the composition of their workforces to consider whether those align with the organization’s values, to search for where people may be discouraged from applying or may choose to leave before they or the organization have been able to enjoy the benefits of their contributions, and to develop creative solutions.  I regularly tell DEIB professionals that I do not envy their jobs. To be effective, they must lead a course of soul-searching, break down systems, analyze their component parts, and get buy-in to effectuate change.

I applaud the objective of getting us to a point in society where we all feel valued and appropriately compensated for the work that we do. But no wave of a magic legislative wand is going to get us there. Let’s instead buckle down at each of our organizations, partner with those who are developing some expertise in this area, roll up our sleeves and get to work.

By Tracey I. Levy

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