In 2012, Aileen Rizo was working as a math consultant in a California school district. One day at lunch with some colleagues, she discovered she was earning thousands of dollars less a year than her male counterparts. She filed a complaint alleging pay disparity against the county, which argued that her salary had been determined by her pay history. Almost six years later, a federal appeals court ruled on Monday that prior salary isn't a justifiable reason for pay discrimination.
“If money talks,” Judge Stephen Reinhardt, who died last month, wrote in his ruling for the 9th US Circuit Court of Appeals, “the message to women costs more than ‘just’ billions: women are told they are not worth as much as men. Allowing prior salary to justify a wage differential perpetuates this message, entrenching in salary systems an obvious means of discrimination.”
Just in time for Equal Pay Day—the symbolic day representing how far into the year women in general have to work to earn the same amount of money men made the year before—Monday’s court decision sends a clear message: If workplaces are going to make any progress on the gender wage gap (across almost all occupations, women still earn about 80 cents to every dollar a typical man makes, and that gap is significantly wider for women of color), we have to figure out how to navigate the oftentimes uncomfortable conversations around salary to achieve more transparency.
According to the 1935 National Labor Relations Act, employees who work in the private sector have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." A 2010 survey from the Institute for Women’s Policy Research, however, found that nearly half of all workers said they were discouraged or prohibited from discussing salary information by their employers.
In 2014, former President Obama also issued an executive order that prohibited federal contractors from punishing employees who talk about their salaries. “When employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers,” he wrote, “compensation discrimination is much more difficult to discover and remediate, and more likely to persist.”
Jocelyn Frye is a senior fellow at the Center for American Progress whose work includes pay equity. She says that pay discrimination has historically been difficult to uncover in part because people oftentimes don’t know what their colleagues earn. “The reality is that pay is one of those issues that is notoriously hard to figure out, and increasingly employees want to just have better information to make better choices,” she says. “A lot of people have this experience of being in workplaces and not really thinking it was proper to talk about salary or how much people earn.”
Though there are federal protections in place that prohibit employers from discouraging pay discussions, Frye says those rules don’t cover every employer and every employee. (According to the US Department of Labor’s Women’s Bureau, at least 14 states have passed legislation that prohibit employers from discriminating or retaliating against employees who talk about their or another employee’s wages.) That’s why, she says, if a person who suspects pay discrimination is interested in asking a colleague what they earn, they should first find out what their employer says about those types of discussions. “Just so you know what you can and can’t do,” she says.
Frye also recommends being upfront about why you’re seeking this information: Do you suspect you’re being paid less because of discrimination? Are you trying to gather information so that you can make some career moves? Or are you just nosy? “I’d also say, ‘This is for my own information, I’m not going to share it with other people, I’m not trying to post it on a website or something,” she says. “I think people want to be dealt with in an upright and honest manner.”
Katie Donovan, a pay equity expert, suggests easing into the conversation. “If you want to find out what others are making,” she says, “don’t ask directly. It’s off putting. Instead ease into it by talking about industry norms and research you’ve done.”
On the other hand, if you’re someone who’s being asked to disclose your salary by a co-worker, Frye says it’s really up to you how much information you want to share. “There’s certainly no obligation that requires an employee to share pay information,” she says. “From my perspective, though, if somebody’s asking me, I’m also thinking at some point I may need this information for myself. Everybody should do what is comfortable for them but at the end of the day, there may be benefits to a person interacting with a colleague who they think is asking them in good faith.”
“The bigger context here,” Frye continues, “is creating a culture and environment where people feel comfortable raising questions about how people are being paid.”