No More Excuses!
It’s time to abolish the "she-didn’t-ask" defense for wage discrimination

By Debra S. Katz and Justine F. Andronici

Imagine you're a woman interviewing for a job you really want. You get a call the next day with an offer, and immediately accept it. Later, though, you discover that a male counterpart earns significantly more than you. When pressed for an explanation, your boss tells you that the man demanded more when he negotiated his starting pay.

If you sue for wage discrimination under this scenario, your chances of success would, unfortunately, be slim. Current rulings in employment law have permitted employers to hide behind the “she-didn’t-ask-for-more” and other so-called market-based excuses as legitimate reasons for paying women less than men for the same job or one of equivalent value.

Here’s how the system has been working: Under the crucial federal antidiscrimination law—Title VII of the Civil Rights Act of 1964—a woman must prove that an employer was motivated by intent to discriminate when deciding to pay her less than a male counterpart. Therefore, employers who merely take advantage of the fact that a woman is willing to work for less won’t be held liable for pay discrimination.

In a slightly different vein, under the federal Equal Pay Act—which requires only that an employee prove that an employer paid men and women differently even though they performed the same job, not an intent to discriminate— the law lets employers escape liability if they can show that the pay differentials are caused by a “factor other than sex.” To avoid legal liability, employers trot out market-based excuses: The woman asked for less money, did not seek or negotiate strongly for a raise, or came to the job from a position that paid less. These excuses have, for example, shielded universities that paid female coaches considerably less than male coaches, or compensated female faculty members in male-dominated disciplines less than their male colleagues.

The current legal standard fails to account for the insidious results of gender differences in salary negotiation. A study of master’s-degree candidates at Carnegie Mellon University by economist Linda Babcock found that only 7 percent of first-job-seeking women negotiated their salary, as opposed to 57 percent of men. There was no small consequence to this failure to negotiate. In their book Women Don’t Ask: Negotiation and the Gender Divide (Princeton University Press, 2003), Babcock and coauthor Sara Laschever found that candidates who negotiated increased their starting salaries by 7.4 percent (about $4,000), and that the starting salaries of males averaged 7.6 percent higher than the females’.

Babcock calculated that failing to negotiate for a first salary can lead to an overall loss of over $560,000 by age 60. That comprises a good chunk of the estimated overall wage gap between men and women—further exacerbated by such other forms of gender discrimination as mommy tracking and sexual harassment— which Brandeis University Women’s Studies Research Center resident scholar Evelyn Murphy projects (using U.S. Census figures) costs women between $700,000 and $2 million over the course of a career.

But aren’t women at fault for not negotiating? Babcock concluded that women are essentially trained not to and penalized by employers when they do. Rigid gender-based stereotypes and behavioral norms urge women to behave modestly and wait to be given what they deserve rather than negotiate for it. The economist also has shown that negotiating can sometimes hurt a female job candidate. In research she copublished last year, she found that female candidates who ask for higher salaries before receiving a formal job offer are often not hired at all. Not surprisingly, males who negotiate do not face similar negative consequences. This empirical evidence supports what many women already know from experience: When they ask for what they deserve, employers often view them as overly aggressive, pushy or too “difficult” to hire.

Given the tremendous ramifications of this pervasive discrimination, it’s high time for courts to stop accepting excuses based on women’s failure to negotiate, and instead put the burden of pay discrimination where it belongs: on employers. It’s the employers who should be obligated to carefully evaluate their pay structures to ensure that female applicants are paid what the position is worth—and what similarly situated male applicants would be paid.

This sort of legal approach is not unprecedented. The U.S. Supreme Court has been willing to crack down on the use of stereotypes when they operate to the detriment of women. In the landmark 1989 case Price Waterhouse v. Hopkins, for example, the Court held that the employer should bear the responsibility for preventing the application of harmful gender-based stereotypes that disadvantage women.

Ann Hopkins, a certified public accountant who was seeking promotion to partner in her firm, was criticized by male partners for not fitting tradi tional gender roles and was turned down despite her exemplary record. She was deemed too “macho” by one partner, and in need of “a course at charm school” by another. The Court concluded that the employer should be held accountable for letting these stereotypes pollute the promotion decisions, noting, “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.”

Women are in a similar bind when it comes to negotiating for equitable pay. Employers should not let outdated gender norms taint their employment decisions. And it’s time for advocates to push the courts to step in and tell employers: no more excuses for gender-based pay discrimination.

Debra S. Katz (Katz@kmblegal.com) is a partner with Katz, Marshall & Banks, LLP, in Washington, D.C., a civil rights law firm specializing in employment discrimination and sexual-harassment litigation. Justine F. Andronici (andronici@kmblegal.com) is an associate with the firm, and has served as a women’s-rights law and policy consultant to national feminist organizations.