Employment and Labor Insider - Legalese Is Not Spoken Here

Last week's post about whether certain employees in the news deserved to be fired, in addition to generating some great comments from readers, got me thinking about firings in general.

I don't like to fire people. 

What's the world coming to?

And I know what you're thinking -- then why in the world is she even an employment lawyer!?! She needs a new career! I know. I've fired a few people myself. And, of course, termination is often the best of several lousy options. 

But, let's face it -- terminating an employee is like invasive surgery and therefore should be a last resort. It may be the "least bad" choice, but it's never a GOOD choice. No matter how much you need it, it is going to cause trauma and involve serious risk. Sometimes I find that employers are too quick to go "under the knife" without a compelling need. 

(Usually not HR people or lawyers -- in my experience, it's usually their bosses.)

But, don't you make a lot more money when employees are fired right and left?

Think about your doctor. Have you ever had a doctor tell you, Oh, please don't lose that extra weight or quit smoking or drinking -- I like you just the way you are! It's my job to take care of unhealthy people!

"You're special just because you're you. I like you just the way you are."

Of course not. They never say that because they don't feel that way, even though they might indeed make more money if you stay unhealthy.

Believe it or not, honorable lawyers feel the same way about their clients. Sure, we may generate more billable hours and legal fees if you fire somebody without a good reason and end up in five years of expensive litigation. But we actually prefer for your sake that you avoid it. We'd rather have you running marathons and looking 45 when you're actually 60. Figuratively speaking, of course.

So, with that introduction, here are four reasons your employment lawyer thinks firing should be a last resort. (If you're a lawyer or in HR, you can print a copy of this post and give it to your leadership. Hehe.)

Reason 1: Nobody's perfect. Everybody has good points and bad points. Of course, sometimes the bad points may be of such a nature that there is no way the person can function in your workplace, and in those instances termination is usually the only choice. But many other times, the person is valuable in the "good" ways, and if you terminate her because of the ways that she's not so good, you may just be trading one set of irritations for another. Instead, it often makes a lot more sense to let your employees complement each others' strengths and weaknesses.

"Carissima, even Fabio have ze imperfections. Once Fabio have ze hang nail. It was very upsetting."

Reason 2: It's traumatic to the employee. True confessions: I was fired once, when I was 16, from my first "real" job (part-time at Burger King) because I took too much time off work to hang out with my boyfriend. (I always made sure I had a substitute to work for me, but they didn't care -- life is so unfair!) Seriously, I am sure I deserved it, and that silly termination didn't affect me in any material way -- my parents were still supporting me, and they made me get another job at Arby's within a week, I think -- but it still really upset me to be fired. 

When they said "Have it your way," I thought they were serious!

Well, think about how it must feel to lose your job in this bad economy when houses and cars and electricity and groceries, and your kid's college, are at stake. And maybe you view your co-workers as your "family," which a lot of people do, so you're not only facing bankruptcy but you're also being kicked out of the "family," too. And losing what, for most people, is a major source of their self-esteem.

Reason 3: Sometimes people can change if they're given a chance. It's often said that people never change. I don't buy that. Many employees can and do change if (1) they have the desire and ability to change, (2) they understand clearly what has to change and the consequences of not changing, (3) they are given the concrete support they need, and (4) they are encouraged as they make their halting progress in the right direction. I realize that #1 is a huge "if," but a lot of times employees screw up because they don't really understand the expectations or what is needed to accomplish them. Or they are deficient in a particular area only because they somehow got the impression that it wasn't a big deal to the company.  If they understand the real deal, they can be fine. (Case in point: me. After I Burger King taught me a lesson, I never played hooky from work again.) Considering the expense and disruption of hiring and training new employees, it's at least worth a try.

Reason 4: There's always a big cost associated with firing an employee. Here is where I appeal to your selfish nature. Even if you don't give a second thought to the employee's feelings (and I know you really do), here are a few of the costs, itemized for your convenience:

*Disruption and cost associated with recruiting, hiring, and training a replacement.

*Unemployment compensation for terminated employee.

*If you fight on unemployment, cost and disruption associated with that.

*Grievance administration.

*Disruption and cost associated with arbitration, if you have that.

*Possibility that arbitrator will reinstate employee with back pay, anyway.

*Cost of severance package, if you're lucky and employee takes it. 

*Cost and disruption associated with inevitable charge of discrimination if you don't offer severance or employee refuses to take it. Or complaint filed with the U.S. Department of Labor, or some other government agency. Or belated workers' comp claim. Or dealing with local personal injury lawyer who has taken employee's case.

*Disruption and expense of litigation or defense of administrative complaint.

*Cost of settlement, if you settle.

*Cost of summary judgment prep, if you don't settle.

*Cost of trial if you don't get summary judgment.

*Potential cost if jury finds in employee's favor, including, depending on the claim, the employee's attorneys' fees.

Now, if your employee never bothers to come to work, or is an embezzler, or a sexual harasser, or is incompetent despite your heroic and well-documented efforts to coach, or is "toxic," or is insubordinate, you're probably going to have to risk these costs. But if the employee doesn't fall into any of these clear-cut categories, think about working with him and giving him a chance to meet your performance or behavior standards. Who knows? He might just shape up, and you might just live happily ever after.

Image credits: Wikimedia Commons.

Is your company an EEOC target?

I've written before about the Strategic Enforcement Plan of the Equal Employment Opportunity Commission, which was officially adopted last December, and the Commission's priorities. Last week, EEOC Commissioner Victoria Lipnic spoke about the Plan in more detail at legal compliance symposium.

Commissioner Lipnic is a Republican who used to head the Employment Standards Administration of the U.S. Department of Labor under former President George W. Bush. In that position, she was over the Wage and Hour Division and the Office of Federal Contract Compliance Programs, among other agencies.

As one might expect from a Republican commissioner, Ms. Lipnic appeared to be somewhat less than 100 percent "on board" with the EEOC's current agenda. She reportedly expressed skepticism that use of credit histories in hiring created a disparate impact on women and minority applicants and said that she thought the EEOC should focus more on helping employers to comply with the law and less on litigation.

Victoria Lipnic: Not a team player?

Anyway, here are five ways, according to Ms. Lipnic, that your company could become an EEOC target:

1. You use credit or criminal histories to screen new hires. Although Kaplan's recently cleaned the EEOC's clock in a credit history case, other employers can't necessarily count on doing as well. (In case you're feeling really cocky, please note that in the last couple of weeks, the EEOC has had some multi-million dollar wins. Read it and weep.) The EEOC is unfavorably disposed to the use of these screening devices. As stated above, Ms. Lipnic is skeptical about whether use of credit histories creates a disparate impact. On the other hand, criminal background checks have been demonstrated to have a disparate impact on African-American and Hispanic men. If you use credit or criminal background information in hiring, make sure that (a) the information is relevant to the position applied for and that you can prove it, and (b) you make an individualized analysis of each person who has a credit/criminal problem rather than flatly refusing to hire in all cases.

The EEOC's clock after Kaplan's cleaned it. (And still a little shaky from the experience.)

And, I hope this goes without saying, but you should never use arrests as a basis for declining employment -- convictions and pleas only.

2. You automatically terminate employees when they reach the end of their medical leaves of absence -- no ifs, ands, or buts. I've harped on this a number of times. The EEOC's position is that when an employee reaches the end of his or her allowable medical leaves, the employer should make a good-faith attempt to bring the employee back to work, with or without reasonable accommodations, before cutting the cord.

3. You won't accommodate individuals with disabilities (duh!) or pregnant women who have pregnancy-related limitations. The EEOC is looking askance at employers who will not make "accommodations" for pregnant employees but instead either fire them (hopefully not!) or force them to take medical leaves of absence. This is an unsettled area of the law -- generally, pregnancy is considered a "temporary disability" and so the courts have required employers to treat pregnant women the same as other employees with temporary disabilities. Of course, now that the EEOC has indicated non-permanent conditions may be "disabilities" within the meaning of the ADA, it's possible that a nine-month limitation would be considered a real ADA disability. At least, that's the EEOC's story, and they're sticking to it. 

Gratuitous Cinco de Mayo picture. These women do not appear to have any medical restrictions.

4. You run afoul of an "emerging issue." A big one for the EEOC right now is transgender discrimination. Discrimination against a transgendered individual isn't an ADA issue because the ADA specifically excludes "transsexuals" (the terminology that was being used in 1990, when the ADA was enacted). But it can be a form of sex discrimination, in violation of Title VII.

5. You have pay disparities based on race or sex. If you read this blog, you know I am a skeptic when it comes to the gender pay gap. But what I think doesn't matter. Ms. Lipnic says the EEOC will be on the lookout for equal pay cases to pursue.

I hope everyone knows the "equal pay drill" by now:

* analyze your comp yourself before the government does it for you.

* correct any disparities you may find that don't have good explanations.

* if you do have good explanations for disparities, be sure they are documented so you can prove it.

6. You don't respect your elders, and 50 is the new 40. Although the Age Discrimination in Employment Act protects individuals age 40 and older, Ms. Lipnic said that the EEOC is going to target employers who discriminate against employees 50 and older. In my opinion, this is a great strategy -- after all, age discrimination against people in their 40's is fairly rare. (Unless you're a fashion model, athlete, or TV anchorwoman.)

"Don't hate me because I'm over 50!"

Anyway, back to the EEOC. I know that none of you would dream of discriminating against an employee because of age. But do be sure that you have well-documented reasons for taking action against an older employee and that you are treating that older employee the way you would any "similarly situated" younger person. Also, be even-handed in making hiring and promotion decisions. 

AND, IN OTHER NEWS . . .

Way to go, Marissa Mayer! I have given Yahoo CEO Marissa Mayer a lot of grief over her decision to eliminate telecommuting for employees while having a nursery built next door to her office. Well, it was announced this week that Ms. Mayer is doubling the amount of paid maternity leave for Yahoo moms from 8 weeks to 16 weeks. (Dads get 8 weeks of paid leave.) I still wish she would restore telecommuting (not that anyone asked me), but this is a really nice new benefit.

Model Lanisha Cole settles her sexual harassment lawsuit against The Price Is Right for an undisclosed amount. This came after the court threw out a $7.8 million verdict in her favor. Don't worry, TPIR lawsuit followers -- I'm sure there are plenty more to come!

Are male-dominated workplaces discouraging to mothers?

This is kind of creepy . . . but how else do you get a 15 percent raise any more? A real estate agency in New York offered pay increases of 15 percent to any employee who got a tattoo of the firm logo. The tattoo can go -- er -- anywhere, and 40 employees have said yes so far.

Oh, that Michael Bloomberg. Mayor Bloomberg strikes again. He initiated a bike-sharing program to encourage New Yorkers to become more fit. But no one weighing 260 lbs. or more is eligible to participate because of fear that they'll damage the bikes. Kind of defeats the purpose of a bike-share program designed to promote physical fitness, doesn't it?

¡Feliz Cinco de Mayo!*

*DISCLAIMER: Cinco de Mayo is Sunday, not today.

Image credits: Wikimedia Commons. Painting is Portrait of an Old Man by Niccolo Cassana (1659-1714).

First responders in West, Texas*. Sales clerks in the stores near the finish line at the Boston Marathon. Staff of the District Attorney's office in Kaufman County, Texas. Teachers and administration at Sandy Hook Elementary. Ticket-takers and popcorn-scoopers at the Century 16 movie theater in Aurora, Colorado.

*Although the explosion at West Fertilizer Company appears to have been an industrial accident, as of this morning, law enforcement authorities have not ruled out the possibility of a crime or terrorist act.

Prayers for all those who were killed, injured, or are grieving as a result of these terrible acts.

Employers, do you have a workplace violence plan in place? Of course, it may not stop a terrorist, but it should prevent some incidents and save lives in the event of a crisis. Here is what it should contain at a minimum:

1. A ban on fighting or other violent behavior of any kind, as well as threatening, "bullying," intimidating, or abusive behavior.
2. A ban on weapons in the workplace.
3. A way for employees to report suspicious activity, behavior, or concerns.
4. The strongest substance abuse provisions that your state's laws will allow.
5. An employee assistance program so that your employees with mental illness or personal problems can get help early. (In most jurisdictions, an EAP isn't mandatory, but it is a very good idea.)
6. A preliminary plan to follow in the event of an incident (realizing that flexibility will be needed, depending on the circumstances), and a designated person or team who will coordinate evacuation efforts and contacts with law enforcement.

In addition, and with all due respect to the U.S. Equal Employment Opportunity Commission, which doesn't want employers to do much in the way of criminal background screening, DO screen job applicants or offerees for criminal convictions. You can still address each conviction on a case-by-case basis, but don't be afraid to reject a candidate with a history of violent crime.

Memorial for the Sandy Hook victims.

Some time ago, I did a presentation with a psychiatrist on preventing workplace violence. We didn't talk about terrorism but did talk about more "garden-variety" types of violence in the workplace, such as "going postal" or domestic violence that carries over into the work environment.

According to the psychiatrist, an individual who may be prone to violence often has one or more of the following characteristics:

• A personality disorder (narcissistic or antisocial)
• Substance abuse
• Personal or financial distress
• Possibly, a physical or mental illness other than a personality disorder
• A history of poor impulse control
• A history of violence

Some warning signs that you and your employees can be trained to look for:

• Complaints about unfair treatment that cannot be verified
• Preoccupation with military and weapons
• Outbursts of temper
• Inability to tolerate criticism
• Irrational or delusional thinking
• Demanding or controlling demeanor

As any employer knows, there are federal and state laws making it more difficult to take effective steps in dealing with an employee who appears to be a threat. Probably the most significant limitation that applies to most employers is the Americans with Disabilities Act. Even so, a safe workplace is an "essential function of the job," and you have a right to take reasonable measures to ensure that your employees are safe.

The Century 16 Theater in Aurora, Colorado.

Here are some effective crisis prevention steps that should not create a problem under the ADA:

• Take all threats seriously.
• Quickly work to defuse workplace conflicts, including harassment or bullying situations. Recognize that sometimes the violent employee may have first been a victim of harassment or bullying.
• Consider consultation with an occupational psychiatrist or psychologist. NOTE: By doing so, you may lose a defense to an ADA claim that you were unaware that the individual had a disability, but in a violence scenario, that's a relatively small sacrifice to make -- also, you'll still have other ADA defenses. The medical professional can (1) help you determine whether the threat is real, (2) help you address any conditions in the workplace that may be aggravating the situation, (3) help assess issues in the life of the individual making the threats, and (4) advise you on the most effective/least harmful way to involve law enforcement.
• Consult with legal counsel as well, as needed, to avoid creating ADA or other legal issues that you might not be able to defend.

Next week, I'll post on some of the psychiatrist's recommendations on how to deal with an "at-risk" employee.

BREAKING: One of the suspects in the Boston Marathon shooting (the one in the black cap) was killed last night in a shootout with the police; the other is still at large. A campus police officer at Massachusetts Institute of Technology was also killed.

Image credits: Wikimedia Commons...

Five quick ones from the harassment world, plus a "bonus track" involving our old friends Sheryl Sandberg and Marissa Mayer.

This is sexual harassment? On what planet? Employment Law360 (paid subscription required) reports that a court in California is allowing the sexual harassment claim of model Lanisha Cole from The Price Is Right to go to trial in May. According to Ms. Cole, the executive producer of the show, Adam Sandler, burst into her dressing room while she was wearing nothing but a sheer thong (and I'm not talking about sandals) and bawled her out for not having worn a microphone in her previous segment on the show. Then he stormed out of the dressing room. Several other models were in the room at the same time.

Not this Adam Sandler. He'd never do a thing like that!

Of course, I am not condoning the alleged behavior of the other Adam Sandler, but how is this sexual harassment?

Jury busts EEOC in sexual harassment case. Ouch! The Equal Employment Opportunity Commission sued Evans Fruit Company, an apple orchard in Washington state, on behalf of 14 farmworkers who claimed sexual harassment by a foreman and others. Employment Law360 reports that the jury came back with zilch, nada, zip, zero, nuttink --  finding that no sexual harassment had occurred. The orchard's troubles aren't over yet, though. The EEOC has also filed a separate lawsuit for retaliation, which is still pending. But this big victory for the employer is proof that the EEOC isn't always right, and also that it doesn't always win. 

Finally vindicated! Employers can be sued for age-based harassment. For years, when I've done harassment training, I've warned folks about making too many age-related comments and jokes, saying that this could be a form of unlawful harassment. Of course, it's also evidence of age discrimination. Some people believe me about the harassment part, but many are skeptical. Well, now I have a case to prove it. A vice president of a comic-book publisher has been allowed to proceed to trial on claims of a hostile work environment based on his age. The VP, who was terminated while in his 50s, claims that his boss expressed a desire for a "younger, hipper" company, expressed surprise that the VP was not too old to cut the mustard, blamed the VP's age when he wouldn't go out to strip clubs with the boss, encouraged the VP to dye his hair and have liposuction so he'd look younger, and refused to listen to the VP's input about newfangled things like "social media" because he was too old to know anything about it. 'Cause, I mean, really -- who ever heard of a 50-year-old being tech literate?

Old guys and comics do mix.

(On the other hand, the court found that there wasn't enough evidence that the VP was terminated because of his age, so his termination claim was dismissed.)

Get your popcorn: Ex-associate sues big class action law firm for sexual harassment, big class action law firm files $15 million counterclaim against ex-associate. I love to see litigious people litigating litigiously against each other. It keeps them too busy to bother the rest of us. A former associate at Faruqi & Faruqi, a plaintiffs' class action law firm based in New York, sued the firm and an individual partner for sexual harassment. The ABA Journal reports that the defendants have now hit back with a $15 million counterclaim for defamation, tortious interference, and other claims. According to a Thompson Reuters report, the firm contends that the associate distributed copies of her lawsuit to many of the firm's clients, sabotaging a planned public-sector practice and causing the firm to lose other business. The associate, through her attorney, denies that she did anything improper. Can they all lose? Please?

Presidential peccadillos. And did you know that President Obama is a male chauvinist pig? (Just kidding - I don't really think so.) And Bill Clinton is a fan of the TV show Scandal.

Bonus track: Sheryl Sandberg defends the powerless and vulnerable. (This one isn't harassment related, but it was too good to pass up.) Facebook COO Sheryl Sandberg, on tour promoting her book Lean In, in which she encourages women to go for the gusto in the business world, is standing by Yahoo CEO Marissa Mayer. Ms. Mayer, you may recall, has been under fire because she banned telecommuting at Yahoo while building herself a nursery next door to her office for her own baby. Sheryl Sandberg says that Ms. Mayer is catching grief over this only because she's a woman.

Yep. Mm-hm.

Welcome to America, the land of opportunity, where even the multimillionaires can claim to be victims of discrimination! What a country!

I'm not aware of any man who is "similarly situated" to Marissa Mayer (plenty of guys, I am sure, would love to be), but now that Ms. Sandberg has raised my consciousness, I'll be sure to give him just as much grief. If I ever find him.

Image credits: Wikimedia Commons. Photo of Adam Sandler is by Rita Molnar (2002), Creative Commons License.

My post last week on why the "gender pay gap" is mostly bogus generated a great discussion in the comment box. In the hopes of keeping it going, this week I'd like to talk about some of the discrimination or quasi-discrimination issues we do occasionally find.

That nasty remaining five percent or so* that can't be explained by personal choice.

*Completely unscientific percentage.

If your pay audit uncovers one of these issues, you ought to be thinking about fixing it:

The Lilly Ledbetter Effect. Lilly Ledbetter says she received relatively poor performance reviews in the 1980's because she was a woman. Whether she is correct or not, I am sure that her employer, Goodyear, would have had a tough time disproving this* because she didn't sue until after she had retired, and any records were probably long gone by that time.**

*Yes, I know the burden of proof in a discrimination case in court is on the employee, but as a practical matter it's on you, the employer. And if you're a federal contractor, you know that the Office of Federal Contract Compliance Programs will not give you the benefit of the doubt. If they find a disparity, you will have to prove to their satisfaction that it's not a result of discrimination.

**This is a reason why employers should not destroy records, but that's a topic for another blog post.

But, anyway, let's take Ms. Ledbetter's word for it. So, she got lousy reviews only because she was a woman in a man's world, and pay increases were based on performance ratings. Just for the sake of argument, let's say Goodyear gave a 5 percent increase to everybody who got "Exceeds Expectations," and 3 percent to everybody who got "Meets Expectations." And just for the sake of argument, let's say Ms. Ledbetter deserved an "Exceeds" rating in 1982 but got only a "Meets" because her male chauvinist pig of a boss thought women were good for only one thing. And I don't mean making tires. Meanwhile, Ms. Ledbetter's male counterpart, Joe, got "Exceeds" in 1982 even though he had exactly the same performance as Lilly, just because he was a man.

"Women can't do no work. Dey ain't as smart as us guys is!"

Let's say the male chauvinist pig boss retires in 1983, and from that point on, Lilly begins reporting to Alan Alda, who gives her the performance ratings she really deserves every year after that. Which means that she and Joe BOTH get "Exceeds" in every year until Lilly retires, many years later.

"I love all women. And I don't mean that in an inappropriate way."

Not only will Lilly never catch up with Joe, but also the gap in their pay will widen over time, even though they received exactly the same percentage pay increase every year from 1983 forward.

If you review your compensation and find an unexplained pay disparity involving long-term employees, you should investigate whether it's a result of the "Lilly Ledbetter Effect" -- the lingering effects of a long-past discriminatory decision. If so, then go ahead and make an adjustment to catch her up. Don't wait for her to sue you, or (more likely) for an audit by the OFCCP.

Be sure to visit Stephanie Thomas's The Proactive Employer Blog for this month's Employment Law Blog Carnival, Spring Is In Bloom Edition! Stephanie, thank you for hosting!

The "Retro Career Choice" Effect. This is similar to the Lilly Ledbetter Effect, except that it's technically not a "discrimination" issue. However, it is a fairness issue that creates the appearance of discrimination.

In this scenario, you have a long-term female employee (let's call her Flo) in a supervisory or management position who is paid less than her male counterparts with similar time in the position. Flo has been a great employee, and you don't have any male chauvinist pigs working for you, so you know that she's been rated fairly her entire career.

Flo is on the right.

When you look back at the beginning of her employment, you see that Flo started out as a machine operator and worked her way up to supervisor 20 years ago. Her male counterparts started out as skilled mechanics before working their way up to supervisor 20 years ago. Flo and the boys all got a 10 percent pay increase when they were promoted to supervisor 20 years ago.

OK, Robin - we see where you're going with this. So why not give everybody a "flat" pay increase when they get promoted?

Glad you asked! The reason you use a percentage rather than a "flat" increase is that you want to make sure employees don't lose money when they're promoted from an hourly position with overtime into a management position without overtime. The only way to guarantee this (apart from giving everybody, like, a $100,000 pay increase when they're promoted to supervisor) is to base the employee's supervisor pay on his or her prior hourly pay.

Oh, OK. Thanks. Now, back to our story. Flo freely chose the machine operator job (contrast with "The Channel Effect" below), but the machine operator job didn't pay as much as the mechanic job, so when Flo was promoted and got her 10 percent increase, she got less real money than the guys did. And her future raises would have been a percentage of each year's salary. Which means that, even if Flo and the guys got exactly the same percentage increases every year after their promotions, as with Lilly Ledbetter, the pay gap would continue to widen, and after 20 years Flo would be earning significantly less than her male counterparts. Even though she is every bit as good a supervisor as they are, and even though your company has treated her in a completely non-discriminatory manner.

Doesn't seem right, does it? So, even though this is technically not discrimination, we do normally suggest that employers give their "Flo's" an adjustment to bring them into line with their counterparts.

The Channel Effect. Thanks to commenter Randy Martinez for bringing this up last week in connection with sales positions. Anyone with eyes to see and ears to hear knows that women (statistically speaking, of course) tend to choose certain jobs and that men (statistically speaking, of course) tend to choose other jobs. If these choices are truly voluntary, then there is nothing wrong with it -- whatever the government or the National Organization for Women may tell you.

"Oh, yeah?"

But occasionally the employer will take it upon itself to "guide" women into certain jobs and "guide" men into different jobs that pay more money.

In recent history, supermarkets have been accused of channeling women into cashier positions and men into meat department positions, which pay a lot more because they involve things like cleaning fish guts and cutting cows up into steaks. (I'm not saying supermarkets actually channel -- only that they've been accused of it.)

The OFCCP is onto channeling, and has announced that it will be on the lookout for it during compensation audits.

If you're "channeling" based on assumptions, stereotypes, or even past experience, about what men and women prefer to do or are better at, then stop it! Right now! This is sex discrimination, and it is illegal.

Then, once you've stopped, figure out a way to offer the "male" jobs to your female employees. Many will prefer to stay where they are, but those who prefer the "male" jobs ought to have the opportunity. Once you find out who those women are, consider whether you also need to make some pay adjustments.

The "I Have No Flipping Idea" Effect. Finally, you might come across this one. You or your lawyer finds that a female is paid less than similarly situated males. You try to figure out why. You investigate all of the non-discriminatory reasons we discussed in last week's post, and none of those fit. You investigate all of the discriminatory or quasi-discriminatory reasons discussed above, and none of those fit, either. You talk to everybody who has been involved in hiring these people, as well as those involved in giving raises. Nobody has a clue why this woman is making less money.

"Hmm. I have no flippin' idea why Evangeline is making less money."

If you have a pay disparity that you cannot explain, then go ahead and make an adjustment. Your utter lack of an explanation will be held against you.

Next week, I'll conclude this series with a post on preventive steps that employers can take to avoid creating pay disparities in the first place.

Image credits: Wikimedia Commons.