LOCAL GOVERNANCE, PAY EQUITY, AND THE PANDEMIC: APPLYING NEW YORK CITY HUMAN RIGHTS LAW TO SALARY NEGOTIATION.

• Author: Tewari, Geeta

INTRODUCTION

The United States is in a crisis. This crisis is not only a health or economic crisis, but is also a startling exposure of society's divisions, particularly the divisions in our values, policies, and plans for the most marginalized groups. As of April 2021, with over 560,000 people in the United States dead from the coronavirus, (1) there should be no doubt how drastically money affects one's ability to live. (2) Because of the pandemic's enormous tolls on women, forced to choose between work and family, (3) this article will focus primarily on gender.

The imperatives for securing pay equity for women's work start with the fundamental human right to be free from gender discrimination in the payment of work. Apart from this overarching right and obligation, there are also compelling arguments supporting pay equity as both a short and long term economic and development requirement. (4) Taken a crucial step further, securing pay equity for all marginalized communities must commence with the consensus that pay equity is a human right, and that no one should experience discrimination in relation to their work. Women of color, specifically in African American and Latinx communities, have been hit the hardest by the coronavirus pandemic. (5) It is essential to state this here so that we keep this in the forefront of our minds as we collaborate for solutions. The human rights framework must be applied to all of pay equity's corresponding paths in order for governments to plan effective laws and policies for change. (6) Salary, decided predominantly upon hire, is one of the first defining factors of a person's status in the workplace. It should not be contingent upon background or inside knowledge of a special negotiation tactic, but rather, salary negotiation must be a fair and transparent process.

Furthermore, negotiating salary has historically been stressful for job candidates. In an ideal world, one would ask for the salary they believe they deserve, the employer would review their qualifications and experience, and make a determination without any bias or preconceived notions. But such is rarely the case. There is back-and-forth, a test of argument and persuasion to reach a magic amount, which is often lower than it would be if the job candidate had more knowledge and tools for effectively negotiating, or sadly, if they had simply been born of a different identity and world of privilege. (7) The opportunity to negotiate salary, in part, is a matter of whether one has access to people, literature, or programs that encourage and foster confidence in using one's voice. (8) Negotiation success also depends on whether people are sufficiently equipped with the knowledge and tools to effectively and persuasively apply language and ideas. (9) A certain narrative provides a better result in negotiation. (10) Access, or lack thereof, will only become more pronounced by the pandemic, as groups self-isolate or associate primarily with people from their previously established inner circles, thus blocking paths for the informal networking and mentorship opportunities real-time face-to-face contact provides. Institutions must acknowledge this gap and respond to it.

Research has also shown that, unfortunately, successful narratives differ based on gender. While both sexes benefit from a pitch based on preparation and confidence, women are often more successful negotiating when their ask is framed in a way that includes a collective purpose. (11) This finding must not mislead us. The prevailing dialogue regarding negotiation cannot accept biases that impede different groups. "Current laws are weak and focus on substantive prohibition of discrimination without attention to form and dynamic processes of inequity." (12) We must do a better job within management of both public and private institutions to create fair and transparent opportunities for negotiation, changing how a person's ask is considered.

Is there a way to ground the negotiation process so that qualifications, experience, and talent are examined without bias lurking underneath the proverbial chairs marginalized groups have brought to the table? The individualistic treatment of gender, which "puts responsibility for change and remedying any disadvantage solely on the individual a 'fix the woman' approach--limit[s] the possibilities for negotiating change in the cultures and institutions that potentially contribute to disparities in negotiating performance." (13) Certainly, no one suggests it to be fair that women are compelled to take into account how their ask will be viewed in light of their gender. Creating guidelines or accessible lists of consciously neutral questions and conversation starters for managers to consider during the salary determination process may be one possible step towards solution. Additionally, creating more opportunity for marginalized groups to access, understand, and apply successful negotiation narratives will aid in achieving a more equitable pay scale. (14) With the heightened health and financial burdens of the pandemic, (15) achieving pay equity is critical to survival. And yet, access to job search and negotiation strategies is enormously challenging, as so many communities struggle to find the time and resources for these basic elements of employment search and transition.

In 2019, the Women in Urban Law Leadership Initiative hosted a public discussion centered on this topic, (16) highlighting New York City's (NYC) Human Rights Law No. 67, (17) which prohibits prospective employers from inquiring about or relying on a job applicant's salary history when determining the "salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of a contract." (18) This discussion was held at eight-thirty in the morning on an insignificant Thursday, free and open to the public, (19) with the intention that people would be able to attend either after dropping children at school or daycare, or en route to work, and in the hope that persons unaware of this law would gain greater awareness of their rights as a candidate vying for a job. Those who attended said afterwards that they not only appreciated the information, but also, the space to talk openly about salary negotiation. I belabor this point because negotiation is a major aspect of salary determination, and because thoughts of negotiation make many people uncomfortable or anxious. (20) Conversations about the challenges of salary negotiation are difficult to recreate online with the same level of intimacy that in-person discussion creates. The coronavirus pandemic has predictably hindered marginalized groups in this regard. (21) We must be honest about the reality of this issue and address it accordingly. (22)

In turn, this Article proceeds as follows, with each Part focusing on gender: Part I discusses NYC's salary history ban and the governmental bodies involved in its implementation as a case study in achieving the human right to equal pay. Theory for the ban is offered, noting that although the right to negotiate is distinctive from the right to a fair salary, both should be fundamental human rights approached with objective, publicly accessible standards. Part II centers on the debate regarding effectiveness of the law and discuses comparative progress by way of additional laws with similar intention. This Part further presents enforcement and litigation results of the salary history ban, reflects on the interplay between regulating salaries and the substance of a salary negotiation, and comments on often-cited negotiation advice for job candidates. The underlying questions threaded throughout this Part and the subsequent Part III are: How do we determine what effective salary negotiation is and should be? Should we account for the differences in negotiation style between men and women? (23) Should we advocate for greater salary transparency, (24) creating an objective system based simply on years out of school and years in the workforce, similar to government models? (25) Should we provide more resources for people to better prepare for negotiation? (26) Part III will additionally emphasize the importance of salary negotiation as a human right, arguing for increased public awareness of negotiation as an essential strategy for equal pay as well as more objective transparency in salary levels so as to better inform all.

1. THE MILIEU OF THE NEW YORK SALARY HISTORY BAN

   1. The Equal Pay Act of 1963: History of Intention

      In 1963, Congress passed the Equal Pay Act with intention to ban sex-based pay discrimination in the workplace. (27) In part, the Act states:

      No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.... (28) However, "equal pay for equal work" still allows employers to base their employment decisions on "any other factor other than sex." (29) This includes an employee's previous salary. (30) Therefore, because women often start at lower salaries and earn lower raises due to historically discriminatory employment practices, exposure to an employee's previous salary substantially contributes to the current gender pay gap. (31) In 2016, full time working women earned nineteen percent less on average than men. (32) In Rizo v. Yovino...