It’s time to abolish the “she-didn’t-ask” defense for wage discrimination.

The Wage For Women
By Debra Katz 

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.

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