Possibly because a growing number of financial industry employees have taken advantage of Brooklyn’s proximity to Wall Street, our practice has seen an increase in financial industry gender and pregnancy cases of late. Most of these cases involve disparate pay practices, most often when female traders, investment bankers or analysts are compensated far differently than their male counterparts. Such treatment often violates the Equal Pay Act, which applies to every employer, bank or otherwise. In short, an employer is not allowed to pay different wages to employees of the opposite sex where the jobs require the same amount of skill.
There are certain guidelines that everyone should know about before bringing an EPA claim. First, a victim of gender discrimination has to have evidence in order to successfully bring a claim. For example, if you think that merit increases are being doled out in a discriminatory fashion then you need to be prepared to explain how the discrimination is manifesting itself. Have you successfully advised clients on larger transactions that resulted in bigger profits for your bank and have nonetheless seen your pay rise more slowly than the pay of your less able male counterparts? That is the kind of evidence that drives successful Equal Pay Act litigation. If you can prove that you are paid less than a comparable man and you are a woman, then you have satisfied the initial burden under the EPA.
The key issue then is proving that the position occupied by the charging party is equal to the higher paid position of the opposite sex. If that can be done, the successful gender discrimination plaintiff under the Equal Pay Act is entitled to an award of liquidated damages, a form of punishment or fine, in an amount equal to the lost pay that should have been awarded by a fair-minded employer. The availability of this remedy is a big help to any victim of discrimination. Even if the case does not go to trial the mere availability of this award can be used to drive settlement negotiations for deserving employees. It is also worth noting that the EPA defines as wages all forms of compensation, including profit sharing and expense accounts. Fringe benefits such as insurance, bonus plans and leave are also covered and may not be administered in a discriminatory manner. Just last month U.S. District Judge Jesse Furman of the Southern District of New York refused to grant defendant accounting firm KPMG’s motion to dismiss a class action suit filed under the Equal Pay Act (Kassman, et. al. v. KPMG LLP). In that suit a senior manager sued after she had her base salary slashed by $20,000 while she was on her maternity leave.
It is important to understand that no matter how keen your instincts, this type of discrimination case can be difficult to prove in court. Start by organizing yourself – gather any and all documentation that you have and call a lawyer sooner rather than later. Capitalize on your instincts early because the system is more likely to reward the proactive and the alert.