Analysis Law and Policy

The Government Made It Easier for Companies to Pay Women Unfairly—But These Google Employees Are Pushing Back

Lisa Needham

What the Google lawsuit highlights is that equal pay isn't as easy as just comparing male employees in the same job to female employees with the exact same experience in the exact same job.

There’s a persistent belief among male tech workers that tech companies are progressive-leaning meritocracies and that there is no gender gap in pay or opportunity. It is increasingly clear that isn’t true. Women in tech generally get paid more than women outside the tech field, but the gender pay gap persists. A new class action lawsuit against tech behemoth Google may illuminate—and perhaps help close—that pay gap.

The lawsuit covers all women employed by Google for roughly the last four years. The named plaintiffs are women that worked at the company in various capacities—one as a software engineer, another with a variety of manager positions, and another as sales communication specialist. All of them allege they were paid less than their male counterparts.

What the Google lawsuit highlights is that equal pay isn’t as easy as just comparing male employees in the same job to female employees with the exact same experience in the exact same job. If it were as simple as that, all equal pay lawsuits would be easy to win. At the federal level, the Equal Pay Act, which has been around since 1963, prohibits pay discrimination on the basis of gender. Title VII of the Civil Rights Amendment of 1964, which forbids discrimination on the basis of sex, also prohibits unequal pay. The current lawsuit against Google is filed in California state court, so it alleges a violation of the California Equal Pay Act (which has generally the same parameters as the federal Equal Pay Act) and charges Google with unlawful and unfair business practices for alleged actions that are counter to the goals of laws like Title VII.

The scope of those types of laws is broad. Jobs don’t need to be identical to warrant equal pay, but have to be substantially equivalent. The work you do, not your job title, is what matters for purposes of the law. And all types of pay are covered: salary, vacation, bonuses, expenses, benefits and more. But at a giant corporation like Google, with over 60,000 employees and thousands of job titles, it’s nearly impossible to figure out how to compare employees across all those possible permutations, and that makes equal pay lawsuits more complicated. These plaintiffs, however, are giving it a shot—and also trying to ensure that Google fixes its gender pay gap company-wide.

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Google calls its job tracks “ladders.” One of the plaintiffs, Kelly Ellis, alleges that even though she came in with several years’ experience as a software engineer, she was hired at Level 3 on the software engineering ladder, which is actually the classification Google usually assigned to new college graduates. A male counterpart with the same years of experience was hired almost immediately thereafter, but was classified into Level 4 on the same ladder, a classification that came with higher pay. Eventually, Ellis alleges, she got the Level 4 designation, but of course by that point, many men that had been hired into higher levels were well on their way to increased pay and opportunity. And that’s a key difficulty: How is Ellis to quantify those lost opportunities in order to accurately assess damages or another way she might be made whole?

Ellis also noticed there was a difference in how prestigious—and therefore how ripe for advancement—certain jobs were perceived to be. Back-end software engineers were paid more, the lawsuit alleges, and fast-tracked for promotions. They were also almost all men.

Another of the plaintiffs, Holly Pease, came to Google with substantial experience in the computing field and, while at Google, managed engineering teams that included software engineers. Under the Google framework, that meant that most of the people she managed were on one of the “technical” job ladders, such as software engineering. Pease, however, was kept in the “non-technical” business systems job ladder, which meant less money and fewer promotional opportunities. Making matters more confusing, around 2013, in the midst of Pease’s tenure at Google, the company reorganized its ladders to move some of the non-technical people to technical ladders. Pease ended up coaching her employees on how to shift from the non-technical to the technical ladder, but was ultimately denied the right to shift to the technical ladder herself.

The same byzantine classification problems applied for the final named plaintiff, Kelli Wisuri. Wisuri was hired into a sales job, but was placed on the “sales enablement” ladder, which is a salaried job, rather than the “sales” ladder, which earns commission. Male employees, the lawsuit alleges, were more likely to be placed in the sales ladder and have the potential to earn lucrative commissions.

With all of these possible job classifications, it is essentially impossible for an individual employee to be able to assess whether or not they are being paid fairly, or whether their equal pay rights are being violated.

In fact, Google has gone to great lengths to be opaque about pay. In 2015, the Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor initiated a routine compliance evaluation of the tech giant. (Google is a federal contractor so it is obliged to undergo reviews to show its compliance with, among other things, equal opportunity laws). During its compliance review of a snapshot overview of data about 21,000 employees,  OFCCP found that Google had “systemic compensation disparities” against women across nearly its entire workforce. The lawsuit alleges that there is a one in 100 million chance that such a systemic and large disparity would occur by chance.

After seeing such large disparities in the snapshot data, OFCCP asked Google to produce compensation data for all employees so it could further assess the pay gap. Google refused to provide the information requested, and the OFCCP had to bring a lawsuit to try to force Google to provide the pay data. Google fought the suit, arguing that it would take it 500 hours and $100,000 to provide the data. Yes, a tech giant that had $21.5 billion in earnings in just one quarter—a company whose very reason for existing is to efficiently categorize and retrieve data—complained about having to spend $100,000 to provide its own data. In July, an administrative law judge largely sided with Google, limiting the amount of data the company has to provide to a snapshot of 8,000 employees rather than the entire workforce.

None of this is happening in a vacuum. The Trump administration is quite interested in proving to companies that it is friendly to them, not to employees. In 2016, President Barack Obama issued an executive order that would have required companies with more than 100 employees to report pay data to the Equal Employment Opportunity Commission, broken down by race, gender, and ethnicity. Notably, that order does nothing to mandate equal pay—it just required companies to provide the data. Business groups hated the order and, in a surprise to no one, the Trump administration killed it in August.

The demise of that rule means that it remains impossible for individual women to determine if their pay is unequal to that of their male co-workers. Private companies aren’t obliged to make their pay data transparent, so an employee might never even learn about the disparity, and they certainly wouldn’t be able to determine if the pay gap was pervasive. Indeed, one of the only ways to get that sort of data is to bring a class action complaint like the plaintiffs did in this case. By arguing that every woman employed by Google in California over a four-year time period is part of the class, the lawsuit stands a real chance of forcing Google to disgorge that pay data—to either fight the certification of the class by arguing that the experience of the plaintiffs who filed the lawsuit isn’t similar enough to that of all women that work there, or to defend against the lawsuit itself.

That’s a depressingly imperfect way to seek justice, however. It presumes that you can find named plaintiffs whose experience can be said to be similar to that of most of the women the lawsuit would cover. It presumes you have the ability to find and hire a lawyer. It presumes you can put your life on hold while a case drags on for years.

It would be a far more efficient, and far fairer, model to empower the government to collect pay data and bring lawsuits when companies fail to provide data or fail to comply with equal opportunity employment laws. The government has the power to pass laws or executive orders that require companies to produce the data and the ability to employ people whose sole job it is to pore over that data. We no longer have a government that is interested in doing such a thing, however, so the courts are the remaining option.

Google fought the government tooth and nail, and largely won. Hoping that private plaintiffs can succeed where the government could not is a slender reed to cling to, but it is the best we’ve got these days.

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