Deborah Eisenberg started her law career as a litigator who loved the "thrill of the battle," standing up for the disadvantaged and less powerful. But when it comes to resolving disputes, sometimes she says it's better to talk it out.
Eisenberg, a professor at the University of Maryland Francis King Carey School of Law, specializes in employment law and dispute resolutions. She serves as faculty director of the UM Carey Center for Dispute Resolution and also works as a mediator in civil and employment cases.
She also has championed equal pay for women, an issue that's drawn renewed attention recently.
Early last week, President Barack Obama signed two executive orders designed to close wage gaps for women and minorities who work for federal contractors. The orders coincided with National Equal Pay Day, a public awareness event symbolizing how far into 2014 women must work to earn what men did in 2013.
Eisenberg testified earlier this month before the Senate Committee on Health, Education, Labor, and Pensions in support of the Paycheck Fairness Act, legislation sponsored by Maryland Sen. Barbara Mikulski that fell short in a vote Wednesday to move to debate in the Senate.
The act was designed to stop employers from retaliating against employees who share salary information and to make it easier to negotiate for equal pay. Opponents argued that the measure would only lead to more lawsuits against employers.
Eisenberg offered some of her views on the issue and on what it takes to resolve disputes without lawsuits.
When you testified on the Paycheck Fairness Act, you said that 50 years after the Equal Pay Act was passed, pay discrimination remains a serious problem for many women. How so and what are some reasons?
Although women have achieved great success in the workplace, gender pay discrimination between men and women performing the same work persists for several complex reasons. It is shocking some cases still involve blatant sexist attitudes that, for example, women "don't have the right equipment" to be paid as much as a man, that men deserve more pay or that mothers should not be working.
More commonly, unequal pay for equal work happens today because of pay secrecy combined with compensation practices that are overly subjective or arbitrary. Pay may be based on the happenstance of prior salaries at previous employers, rather than the qualifications and performance of employees in the new job. It's more typical today for pay to result from a negotiation process that tends to leave women with the short end of the stick for many sociological and psychological reasons. Sometimes women are prohibited from negotiating at all. Other times, negotiating can be risky for women because they may be perceived as too pushy and violate norms that women should be friendly and agreeable.
The more ambiguous pay processes are, the more likely women's pay will be lower because of unconscious biases — including a "motherhood penalty" — that can infect pay decisions even among fair-minded employers. Working fathers tend to be rewarded with more pay, and working mothers tend to earn less because of stereotypes that wives perform "extra" work and their husbands are the family "breadwinners," or that working mothers will have more "work-life" conflict and not be as committed to working hard, even when that is not true.
To top it all off, pay secrecy makes most gender pay discrimination hidden from sight. Pay disparities may start small and snowball over time, undetected and undeterred. If we had greater pay transparency, the gender pay gap would be substantially reduced or disappear.
You have written about and analyzed the existing Equal Pay Act and have found it offers women an "empty promise." What do you mean?
It is extremely difficult to win an equal-pay case. A plaintiff must first show that she (or he) and an employee of the opposite sex work in jobs that require substantially equal "responsibility, skill and effort" and are paid differently. Some courts have interpreted this standard overly strictly to mean that only assembly-line workers in "cookie-cutter" jobs can state a claim. So, even though the gender pay gap is the greatest in professional and upper-level jobs, the way some courts have interpreted the Equal Pay Act has imposed a remedial "glass ceiling," putting women outside of the law's protection as they climb their way higher on the occupational ladder.
Even if a plaintiff can meet the "equal work" threshold, many courts have accepted overly broad defenses that have nothing to do with the jobs at issue or the qualifications or performance of the employees in those jobs. The "prior salary" defense is one example. Another example is vague "market" excuses that are not based on actual market data but on a supervisor's hunch that one worker was worth more or had more potential, without any supporting evidence or explanation.
What is the nature of some of the disputes you have come across while serving as a mediator? What are some of the more effective strategies for resolving disputes?
Conflict is an inevitable part of all aspects of our lives. In my experience, all conflict comes down to basic values like respect, fair play, equal opportunity, honesty, recognition, integrity and inclusion. Although messy and uncomfortable, conflicts should not be avoided — they provide opportunities for better communication, greater understanding, growth and positive change. It is important for schools, workplaces and communities to have effective conflict management and prevention systems so that conflict is dealt with in healthy, rather than destructive, ways, leading to greater trust and morale and safer, more productive environments.
Maryland Law's Center for Dispute Resolution trains and supports schools and workplaces in developing effective conflict management processes, such as mediation programs or restorative processes. In a mediation, a neutral mediator helps the people involved to communicate and better understand each other's perspective and, if appropriate, facilitates a settlement.
Litigation, although sometimes necessary (especially when important public values are at stake), can be a lousy way to resolve disputes for everyone involved — it is reactive, piecemeal, expensive, disruptive and stressful. If there is a chance to "talk it out to work it out," that is typically going to result in a more satisfying and durable resolution for everyone involved.
How did you become interested in employment law? Other than pay, what other types of workplace discrimination are prevalent today?