Most people are aware of Equal Pay Day, which is the approximate day the average woman in the United States must work into the new year to make what the average man made the previous year. In 2018, that day was April 10, meaning the average woman makes $0.80 for every $1 the average man makes. The numbers are, not surprisingly, substantially worse for women of color. What is much less well known is that even in 2018, this persistent wage gap exists even in the legal profession—the very profession tasked with rectifying the unequal treatment of women. Major, Lindsey & Africa’s 2016 law firm partner compensation survey reported average compensation for male partners was 44 percent higher than for female partners. And its 2017 in-house compensation report showed that male general counsel received 17.5 percent higher total compensation than female GCs, and female non-GCs earned 8.2 percent less total compensation than their male counterparts. Law firm associates fare no better. According to a 2014 study by Sky Analytics, female associates make 77 percent of what male associates make.

How is it that more than 50 years after passage of the Equal Pay Act, such pernicious gender pay disparity continues to exist even in the legal profession? While there may be many legitimate business-related reasons for lawyers to be compensated differently, at least some of the blame for this insidious pay gap must be attributed to historical gender discrimination. How can that be? For starters, although women make up roughly half of all law students, studies show that only 45 to 46 percent of students enrolled in the top-tier schools were female. Students from these top-tier schools are more likely to find full-time J.D.-required jobs after graduation and jobs at large law firms that pay the highest salaries. But it doesn’t stop there. Even if male and female attorneys are paid the same first-year base salary, a gap can quickly develop and widen. For example, if a third-year female associate begins a six-month parental leave in October and returns to work in April, she may be told her compensation upon return will continue to be as a third-year attorney. And because she may be slow in ramping back up, or may decide to work part-time for a few months, her annual bonus will be substantially less, if not nonexistent. If that same associate decides to take a job as in-house counsel, which sets her pay based on the pay at her last job, she is now starting that position at a salary that is substantially lower than her male counterparts who did not take parental leave, even if she went to a better law school, got better grades, and had better performance evaluations. Can anything be done? Both the California Legislature and the U.S. Court of Appeals for the Ninth Circuit believes it can. California’s Fair Pay Act, like the Equal Pay Act, generally prohibits employers from paying employees less than the wages paid to employees of the opposite sex for comparable work. Both statutes are strict liability statutes, meaning an employee does not need to prove intentional discrimination—the pay disparity is proof of the discrimination, which the employer can only rebut by proving the wage disparity is based on one of the enumerated, non-discriminatory factors.