If You’re Going To Negotiate Hiring Salaries, Do It Right
Published by Eric A. Welter on January 20, 2015
In Thibodeaux-Woody v. Houston Cmty. Coll., the Fifth Circuit denied a motion for summary judgment for an employer who had allegedly treated male and female candidates for a position differently during wage negotiations. The Court found that there was a genuine issue of fact whether the employer made wage negotiations equally available to male and […]
In Thibodeaux-Woody v. Houston Cmty. Coll., the Fifth Circuit denied a motion for summary judgment for an employer who had allegedly treated male and female candidates for a position differently during wage negotiations. The Court found that there was a genuine issue of fact whether the employer made wage negotiations equally available to male and female candidates.
During the female candidate’s interview, she asked whether she could negotiate a starting salary higher than the offered amount. The interviewer replied in the negative and she was hired at the originally offered salary. During a male candidate’s interview, he also inquired about negotiating a higher starting salary, and made a salary counteroffer, to a different interviewer. The interviewer forwarded his request to the Human Resources Department, and he was ultimately hired at a higher salary than the female candidate.
The employer’s defense in this case is that the pay differential was due to the candidate’s different approaches to salary negotiation, which is a factor other than sex. An employer is not liable under the Equal Pay Act if it can show that a pay differential is based on “any other factor other than sex.” 29 U.S.C.A. § 206(d)(1). The Fifth Circuit clarified that “[i]f negotiation is not available to persons of both sexes, it cannot be a legitimate, nondiscriminatory reason for a pay differential.” Thibodeaux-Woody, No. 13-20738, 2014 WL 6064479, at *4 (5th Cir. Nov. 14, 2014).
This one doesn’t pass the smell test. The employer was trying to argue that they opened negotiations to the male candidate because he negotiated better by presenting a counter-offer rather than just inquiring into whether negotiation was an option. And that may very well be a valid reason. But, there was evidence that the female candidate’s interviewer became aware of the other negotiations and did not do anything to correct his initial statement that negotiation was off the table, and that’s where things get a little muddy.
Topics: Discrimination, fairness salary negotiation, Gender Discrimination, sexual discrimination, wage