How do you measure wage discrimination in field where talent affects each individual’s pay? For the last 6 months, the British Broadcasting Company (BBC) has been wrestling with this issue in light of claims of wage discrimination at BBC. With Carrie Gracie’s resignation from the China editor position, the struggle went public, even reaching news outlets here the United States.

In this blog post I will review the open letter published by the BBC’s China editor, Carrie Gracie, about wage discrimination between the company’s four international editors. I will explain how the U.S. Equal Pay Act compares to Britain’s Equality Act of 2010, and what U.S. employees can do if they find out they are being paid less because of their gender.

On January 7, 2018, Carrie Gracie published an open “Letter to BBC Audience” on her personal blog. The letter announced that she would be stepping down from the China Editor position and resuming her role at the BBC newsroom. The reason for the sudden change was what Gracie saw as substantial wage discrimination between female and male international editors.

BBC Releases High Earners’ Salaries, Revealing Apparent Wage Discrimination

Gracie’s letter brought attention to apparent wage discrimination first disclosed in July 2017. At that time, the BBC published the salaries of all those earning £150,000 or more, grouped into £50,000 tiers, under the terms of its new Royal Charter. Two thirds of those stars were males (62 men as compared to 34 women), including the company’s top seven earners. Prime Minister Theresa May said “I want women to be paid equally,” and Lord Tony Hall, BBC’s general director, pledged to close the gender pay gap by 2020.

But Carrie Gracie didn’t want to wait. She asked the BBC to address wage discrimination between her colleagues and herself. She noted that she is a China specialist, fluent in Mandarin, and had nearly 30 years of experience in journalism. She noted that her position also brought unique challenges including distance from loved ones, censorship, police harassment and official intimidation. All of these factors could contribute to a higher rate of pay. But in a BBC Channel 4 News Interview on January 8, 2018, she disclosed that she only earns £135,000 per year, less than 50% of her male colleagues.

The BBC apparently offered her a substantial raise to resolve the matter. However, Gracie says it wasn’t big enough to eliminate the wage discrepancies, nor did it address treatment of other women across the company. She called on the BBC to engage in independent arbitration to resolve those individual cases, but she would not weigh in on whether that meant raising women’s compensation or forcing male employees to take a pay cut.

British Equality Act 2010 Compared to U.S. Equal Pay Act

The British Equality Act of 2010 created an overarching civil rights law similar to the U.S. Civil Rights Act. Among many other things, the law protects British workers from discrimination at work including pay and benefits. It allows claims even when there is no direct comparison to a worker of another gender. It also made pay secrecy clauses unenforceable, making it easier for women (and minorities) to discover illegal wage discrimination.

The British law combines several civil rights laws with American equivalents. For the purposes of wage discrimination, it connects to Title VII of the U.S. Civil Rights Act and the Equal Pay Act. Title VII protects against sex and gender discrimination in work-related decisions, including pay, benefits, and raises. The Equal Pay Act explicitly prohibits paying different wages based on an employee’s sex.

Both the British and American systems allow employers to justify pay differences based on gender-neutral characteristics. Under the Equal Pay Act that could include:

• Merit
• Quantity or quality of production
• Experience
• Skill needed to complete the task
• Risks associated with the task

However, under the Equal Pay Act, an employer cannot solve wage discrimination by reducing the wages of other employees. The British Equality Act does not appear to have the same restriction. While the BBC has said there was “no systemic discrimination against women”, the company has admitted that meeting its own promises could cause male “talent” to face pay cuts.

What To Do If You Face Wage Discrimination

American workers facing gender-based wage discrimination have the right to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. Many states also have their own laws prohibiting wage discrimination, which allow for claims to be filed in state court.

However, in many cases, before filing those complaints an employee must exhaust internal complaints and grievance procedures. It was due to frustration with a similar internal process that finally pushed Gracie to publish her open letter and resign from her position as China Editor. However, until those remedies are exhausted, American workers may not be allowed to take the case to court.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you sort through the law and make sure you follow the right processes. If you believe that you are being paid less than your coworkers because of your gender, even in an industry with individual pay calculations, contact Eisenberg & Baum, LLP, today to schedule a free consultation.