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Hanna: Equal Pay Ruling

So this is how my very first salary negotiation went: “We’d like to pay you X amount,” offered my boss. “That’s too much,” I said. “I need to make three thousand less than that.”

“Less?” he asked. “Yes,” I said. “Please don’t pay me so much.”

You see, at the time, I was part of a loan forgiveness program that erased some of my student debt if I were in a low-income job.

But my problem was that no one had ever taught me how to negotiate my salary, and apparently, I had never learned math.

Because if I had, I would have realized that over time, it would have made much more sense to take the extra $3,000 – which, assuming a 2% annual raise, would have yielded about $125,000 more in income over my career, and just paid the loan myself.

As a result, I’m sure that the compounding effect of my ignorance means that my pay is less than many of my male colleagues with same skill and experience.

While I hope no one else has so foolishly negotiated a salary downward, there are countless women who didn’t negotiate their salary at all, and then realized that they too were making less than a male colleague doing the same work. There is significant evidence that shows women negotiate less routinely than men do, and are even penalized when they ask for more money. And, on average, women still earn less than men in nearly every field.

But now a federal court has said that under state and federal Equal Pay laws, employers cannot pay a woman less just because the man was a better salary negotiator. In Dreves v. Hudson Group , Judge William Sessions held that doing so just perpetuates the problem that men are valued more in the workplace than women. Even if no one had any intent to discriminate, the law requires equal pay for equal work, and it is simply not a legitimate business reason to say, “but the guy asked for more.”

Judge Session’s opinion is important because it clarifies for both employers and employees when you can pay people of different genders more, and when you can’t. The law gives employers the right to pay based on education, experience, or skill, but not for any old reason under the sun.

I’m very hopeful that this opinion will encourage employers to undertake a pay equity audit to make sure that they haven’t inadvertently violated the law. And I suspect the decision will encourage some women to come forward and seek remedy for unequal pay.

As Judge Sessions wrote, “any gap in the pay of men and women, whether forty or ten or one percent, is an implicit statement to our children that we value the work of our daughters less than that of our sons.”

As for those salary negotiations – well, I’m making my students and my children practice their salary negotiations before their first job, and insisting that they do their math.

The late Cheryl Hanna was a professor at Vermont Law School in Royalton.
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