This blog was originally published on the Human Rights Centre Blog.
In March of this year, Google found that they were paying men and women unequally: but not in the way you might have expected. Their internal audit found that they were paying men less.
This seems to fly in the face of statistics, which continue to show that companies and organisations pay women less. In 2018, women in the UK earned on average 8.6% less than men per hour, and women in the USA earned only 85%of what men did. In the UK, since last year, companies with over 250 employees are required to publish their pay gaps: Google’s median pay gap rose to 20% in 2019.
And yet, Google’s pay audit found that they were paying women more than men. The tech giant allocated $9.7 million to redress this balance: 69% of their workforce is male, but more than 69% of that $9.7 million went to male employees.
A paper provided by Googleexplains a little more about why this happens. The company uses a model to predict compensation based on role, location and performance: but managers have discretionary funds that they can use to raise compensation for particular employees. Their annual pay equity analysis looks at both of these factors, across the whole company, and found that in one particular job code (‘Level 4 Software Engineer’), women were receiving more discretionary funds. In other words, managers were allocating more money to women, raising their compensation above what the model predicted they should be paid.
So is the model underpredicting pay for women, then? One plausible explanation is that women are systematically kept at lower grades within the organisation and are given pay rises in lieu of promotions. If this is the case, as Melanie Ehrenkranz wrote in Gizmodo, Google aren’t addressing inequality against women: they are “simply reverting to a pay gap that was being corrected through discretionary funds.” Google have, to their credit, committed to looking further into their pay discrepancies.
This kind of paradoxical finding isn’t unique to big tech. It reflects an overly simplistic and individualistic approach to pay equality: a so-called ‘gender neutral’ approach, often called ‘formal equality.’ Approaching equality in this way requires only that people – in this case, men and women – are treated equally. It doesn’t require looking at outcomes or social factors more broadly, and while it might seem straightforward, the assessment processes require choices: who to compare to whom, and on what characteristics?
Laws are not neutral – they are written by the people in power, and historically these people have often been powerful men. Formal approaches to equality therefore tend to ‘disappear’ the historical, systematic and structural discrimination against women that continues to exist, and result in laws that prohibit ‘sex discrimination’ – regardless of sex, implying that discrimination can and does go both ways.
People who have more power have more access to the justice system, and are more likely to have the time and energy to take a case to court. Formal equality approaches, therefore, have been used to identify the few areas where women have access to something that men do not, and to redress that inequality, not the systematic and structural discrimination against women. It’s not a bad thing to make it easier for men to care for elderly relatives, as in an early case taken on by Ruth Bader Ginsburg that was documented in the recent film On the Basis of Sex. Nor is it bad to make it easier for men, as in the 2012 European Court of Human Rights case Markin v. Russia, to take parental leave. But focusing mainly on areas where men are discriminated against ignores the broader context of a system that treats men as the ‘default’ and women as the ‘other’.
Formal equality is inherently an individualised approach:it takes an individual – in this case a woman – and compares them to the dominant norm – in the case of compensation at Google, a man doing the same job. In doing this, it cements the idea that men are the norm and women the outlier. And looking at ‘sex discrimination’ in the context of pay inequality depends a lot on the comparators that you choose. In Google’s case, they looked at men and women in the same role – ignoring factors that might lead to women being graded lower than men – and paid men more accordingly.
Human rights law has recognised that formal equality might be necessary, but it isn’t sufficient. The Committee that monitors the implementation of the Convention on the Elimination of All Forms of Discrimination Against Womenhas noted that substantive equality, not formal equality, is the goal: this means looking not just at laws and policies as they are written, but at their contexts, applications and effects. Only then will we see an end to discrimination on the grounds of gender.