WHEREAS, the Women’s Bar Association of the State of New York is the second largest statewide bar association in New York, and

WHEREAS, the Women’s Bar Association of the State of New York includes, in its mission, “to promote the advancement of the status of women in society and of women in the legal profession; and to act as a unified voice for its members with respect to issues of statewide, national and international significance to women generally and to women attorneys in particular” and

WHEREAS, according to data released by Governor Andrew M. Cuomo’s office on January 10, 2017, women in New York State earn 87 cents on the dollar in comparison to what men earn. Women of color, compared to white men, fare worse: African-American women earn on average 69 cents on the dollar and Latinas 58 cents on the dollar. Further, a McKinsey report estimates that full labor force parity would lead to an additional $4.3 trillion to U.S. GDP by 2025. A study in August 2016, commissioned by New York City public advocate, Letitia James, adds that women in New York State earn some $20 billion less than men annually. In New York City, women get paid nearly $6 billion less than men annually; and

WHEREAS, the data for the legal profession (nationally) shows significant salary and position disparity between women and men. A study in October 2016 by the legal search firm Major, Lindsey & Africa, found that female partners at big American law firms earned an average of $659,000 annually compared to an average of $949,000 for male partners. This means women in big law firms earned an average of 44% less than men. According to the NALP 2016 Report on Diversity in U.S. Law Firms, only 18.1% of equity partners in multi-tier law firms were women and only 5.8% were racial/ethnic minorities. In 2016, women accounted for only 23.13% of the partners in the nation’s major law firms and minorities accounted for only 8.05%. In that same period, the percentage of women of associates was 45 and the percentage of minority women was 12.48. Given that equity partners typically earn significantly more than salaried partners who typically earn significantly more than associates, this translates into a large wage difference between the sexes; and

RESOLVED, WBASNY takes the position that there should be equal pay for equal work regardless of gender, sexual orientation or race and that employers and contractors should not be permitted to discriminate based on gender, sexual orientation or race, and

RESOLVED, that WBASNY takes the position that prohibiting employers from asking job candidates about their wage history is an effective and practical way to reduce wage discrimination both within the legal profession and generally because it forces employers to value the job rather than entrenching prior discrimination the worker might have experienced in prior positions. Salary history is often used as a tool for setting wages, and interviewers are often authorized to offer a certain percentage above the candidate’s current salary. Such a prohibition does not stop a well qualified candidate from getting a higher rate of pay: employers can take such qualifications into account when making an offer and the candidate can make a counter offer if the offer is perceived as below what the candidate is worth, and

RESOLVED, that WBASNY applauds Governor Andrew Cuomo for signing Executive Orders #161 and #162, both dated January 9, 2017. Executive Order #161 prohibits state entities from evaluating prospective candidates based on prior wage history. Executive Order #162 requires state contractors to disclose gender, race, ethnicity, and salary of all employees to drive transparency and progress toward wage equality. While WBASNY believes that these Executive Orders are a step in the right direction, Executive Order #161 is limited in that the candidate for employment at the state entity can still be required to provide and verify his or her compensation history or prior compensation history once a conditional offer of employment with compensation has been extended. It is also limited in that it only applies to state entities not all employers within New York State. WBASNY would like to see laws enacted to strengthen and further the reach of these measures, and

WHEREAS, in May 2017, Mayor Bill de Blasio signed a law set to go into effect in early November 2017 preventing Wall Street and most private employers in New York City from asking prospective employees about their salary history and compensation, and from searching public records to discover a candidate’s payment history. Any candidate who thinks a prospective employer has violated the new law can file a complaint with the City’s Commission on Human Rights, which can impose fines of up to $250,000 per violation, and

RESOLVED, that WBASNY urges the adoption of state-wide laws which mirror the laws signed by Mayor Bill de Blasio in May 2017. Such laws are more relevant and needed more than ever in light of the decision by the recent three-judge panel decision of the 9th Circuit Court of Appeals, Rizo v. Yovino, (DC No. 1:14-cv-00423-MJS, Apr. 27, 2017). This decision overturned the lower-court ruling that held pay differences based exclusively on prior salaries were discriminatory under the Federal Equal Pay Act. In this case, a female math consultant, Aileen Rizo, was paid less than her male counterparts including one who was hired after her. The Ninth Circuit ruling relied on a 1982 case, Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), that held employers could use previous salary information as long as they applied it reasonably and had a business policy that justified it, and

RESOLVED, that WBASNY applauds the steps Governor Andrew Cuomo is taking, and urges the adoption of laws which would prohibit private employers in New York State from asking prospective employees about their salary history and compensation, and from searching public records to discover a candidate’s payment history. WBASNY also would like there to be a way for candidates who think there has been a violation of such laws to report the violation and for a mechanism for violators to be fined and for damages to be imposed.
Adopted by the Board of Directors of the Women’s Bar Association of the State of New York on the 18th day of November, 2017