When It Comes to the Gender Pay Gap, the Laws Are There. The Culture is Not.

Laws designed to combat pay injustice are a good start, but it’ll take much more than that to get us across the finish line.

When It Comes to the Gender Pay Gap, the Laws Are There. The Culture is Not.
Illustration by Alana Berger.

Apple’s facing a fresh legal headache. 

Last Thursday, the tech company was hit with a proposed class action lawsuit accusing it of discriminating against more than 12,000 women staffers, and placing it among a handful of tech giants and other companies which have navigated similar allegations.

The suit claims that Apple has, over the past few years, been paying women based in California (where Apple is headquartered) lower wages than it pays male employees who are “performing substantially similar work under similar working conditions”—a practice that violates California’s Equal Pay Act. It also accuses Apple of using an employee evaluation system that is biased against women; a system that, when it comes to qualities like teamwork and leadership, rewards men and penalizes women.

One of the specifics of the claim is as follows: Before the autumn of 2017, Apple would explicitly ask potential employees in job interviews for prior pay information. There was nothing legally wrong with that at the time, but in January 2018, it became illegal in the state of California to ask a prospective worker how much they earned in a previous job. 

Now Justina Jong and Amina Salgado—the two plaintiffs who are bringing the case—are claiming that despite the new law, Apple “continued to inquire about prior pay under the guise of candidates’ pay expectations.” (They argue that all the women employed in Apple’s engineering, marketing and AppleCare divisions based in California were potentially affected by this practice: hence the more than 12,000 individuals.)

Read more: Stalled Progress In the C-Suite

Taking a Closer Look

There are so many observations to be made about this case. 

Yes, it’s yet another example of women, who say they’ve been wronged, leveraging the law to take on a corporate behemoth. Yes—depending on the outcome of the case—it could turn out to be another example of systemic discrimination that has gone unchecked for years.

But perhaps what this case proves most prominently is that laws designed to combat pay injustice can only ever take us halfway there; to get across the finish line, company culture and actual hiring practices need to change.

To be sure, many of the laws that are enacted with the mission of leveling the playing field, are a worthy step in the right direction. The California ban on employers asking a candidate’s pay history is no exception. Neither are similar laws that have in recent years come into effect across more than 20 U.S. states and across the European Union.

But cases like the Apple suit are a stark reminder that laws are no panacea. Even if a company follows the letter of the law, there’s no guarantee it will follow the spirit of the law.

Examples of this are abundant. 

As of 2022, companies in New York City must post salary ranges on all job advertisements. The rationale is that leveling pay expectations will also level the pay playing field.

But in the months following the implementation of this law, job ads sprang up online with pay ranges that were ludicrously large. According to CBS News, Deloitte, for example, posted a salary range of $86,800 to $161,200 for a senior tax accountant requiring at least two years' relevant experience. Sure, this is legally compliant. Does it address the heart of the problem? Hardly. 

Likewise, when the U.K. in 2017 implemented a national gender pay gap reporting mandate requiring companies employing at least 250 people to publish an annual gender pay gap report, plenty of firms came up with creative ways of following the law—but only just. 

Helene Reardon Bond, the former director of gender equality for the U.K. government, told the BBC at the time that she had heard of consultancies advising employers to set up new legal entities “so that companies can hive off parts of their business,” meaning that lower paid divisions are accounted for elsewhere.

Meanwhile, several large professional services and law firms came under fire for claiming their top-earning partners—and yes, these people were predominantly male—were “owners” rather than “employees,” thereby erasing them from the pay gap calculations. 

And this brings us back to the lawsuit against Apple. Yes, a manager might follow the law by refraining from explicitly asking job candidates what they were paid in a prior job, but that doesn’t mean they won’t ask proxy questions which aren’t technically prohibited but ultimately have the same effect. Asking for pay expectations is basically the same thing as asking what someone has been paid to date, explains Joseph Sellers, a partner at Cohen Milstein Sellers & Toll PLLC, one of the law firms—alongside Altshuler Berzon and Outten & Golden LLP—which is representing the women. 

Most class action lawsuits of this kind are either dismissed or end up settling. But whatever happens in this particular case, it should serve as a reminder that anti-discrimination laws designed to protect the rights of workers can never—and will never—create perfectly fair workplaces. 

In order for that to happen, managers and executives must understand the reason for these laws—and commit to them. There must be enforcement. There must be mechanisms to ensure that companies aren’t just checking boxes and moving on. And there absolutely must be corporate leadership that models its commitment in everything it does. 

Read more: What if OpenAI had just not created a female voice option?

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