Co-Written by Outten & Golden LLP Law Clerk Amy Biegelsen and Marketing Assistant Danielle Travali
In movies like “Silver Linings Playbook,” Oscar winner Jennifer Lawrence portrays tough leading ladies who always have something to say. In real life, however, she has kept quiet about a certain issue that bothered her–until now.
This week Lawrence published an essay called “Why Do I Make Less Than My Male Co‑Stars?,” in Lena Dunham and Jenni Konner’s e-newsletter “Lenny Letter.” She writes about learning through the 2014 Sony Pictures email hack that she made less than her male co-stars in the 2013 film “American Hustle.”
According to the Los Angeles Times, Lawrence was paid 7% of the profit on the movie while her male costars each earned 9%. Lawrence observes:
“Jeremy Renner, Christian Bale, and Bradley Cooper all fought and succeeded in negotiating powerful deals for themselves. If anything, I’m sure they were commended for being fierce and tactical, while I was busy worrying about coming across as a brat […] but I wasn’t completely wrong when another leaked Sony email revealed a producer referring to a fellow lead actress in a negotiation as a ‘spoiled brat.’ For some reason, I just can’t picture someone saying that about a man.”
Wendi Lazar, who was an Emmy-winning producer before becoming an Outten & Golden LLP partner and top negotiator for executive compensation and severance agreements, says, “In 2015, women from Hollywood to Wall Street are being paid less for the work they do, bonuses less, and not given the best opportunities to earn top dollar–and this system needs to change,” Lazar says. “Serena did it for Tennis–maybe Jennifer can do it for Hollywood.”
Although the gender wage gap has been with us for years, it got more attention recently, especially after Lawrence’s colleague Patricia Arquette used her Oscar acceptance speech to demand “wage equality once and for all.” The California legislature got the message, and just this month Governor Jerry Brown signed the California Fair Pay Act, which will require California employers to pay their employees equally, regardless of gender, for “substantially similar work.”
Juno Turner, a partner at Outten & Golden LLP who litigates wage and hour class actions, says the California law is a significant improvement over the similarly worded federal Equal Pay Act.
To win this kind of claim, employees have to show that their workers, or “comparators,” did similar work for higher pay. “The California law broadens the scope of potential comparators by allowing women to compare their work to that performed by their employees at different job sites,” Turner says. “It also outlines the kinds of factors that employers can use to justify differences in pay. These changes are going to reduce employers’ odds of beating these claims by relying on bogus justifications.”
The California law improves on the federal statute in another important way. The federal Equal Pay Act includes a gaping loophole that allows bosses to pay different wages for the same work if the pay disparity is based on “any There factor There than sex.” That language is broad enough for employers to hide behind a stand-in for sex discrimination, and claim that they are not paying differently based on sex. Say a man and woman get hired for the same job at the same time, but the man had a higher salary at his old job than the woman did, and the new employer continues the wage difference.
Courts have said that’s okay based on the “factor There than sex” language, even if the salary difference that’s being carried over from the old jobs is itself a product of gender discrimination. The California law, however, says that a pay difference is allowed only when it’s based on a “bona fide factor There than sex, such as education, training, or experience.”
Here’s hoping that the new law will even the playing field off screen, so that Jennifer Lawrence can focus on fighting corrupt rulers in “The Hunger Games” while she’s on screen.