Working for Justice

What’s most shocking about the new Sarah Silverman ad?

Last week, with the help of Sarah Silverman’s unique brand of irreverent humor, we were introduced to the Equal Payback Project.  The goal of the project is, through a crowdfunding campaign, to raise awareness that more than 50 years since the passing of the Equal Pay Act the average American woman is still making only 78 cents to a man’s dollar.  While this figure, itself, is hardly news, what seems to be garnering national attention is Silverman’s ability to call a spade a spade—or in this case a vagina a vagina—and simple multiplication.  Silverman is asking Americans to donate $30,000,000,000,000 (that’s $30 trillion, for those of you tired of counting zeros) to offset the “vagina tax” imposed on working women in this country through pay discrimination.

As a warning, while the ad is about just compensation for work, depending on where you work, you might want to wait till you’re home to hit play.  In her typical over-the-top style, Silverman waves around some NSFW paraphernalia in order to drive home the absurdity of the situation.

So what’s most shocking about this ad?  Is it the ludicrously high amount by which American women are underpaid over the course of their careers?  Is it the gleeful display of silicone genitalia?  Or is it the fact that we’re trying to achieve equal pay through a fundraising campaign?

At every level of education and in every occupation, women earn less than men.  Just one year after college graduation, women are paid 82 percent of what their male counterparts are paid—one struggles to explain this statistic absent discrimination.  And this inequality only increases with age and with higher levels of education.  What’s worse, the gap is even larger for mothers and women of color.

What are we, as a country, doing about this problem?  In April, President Obama signed two executive orders promoting equal pay.  The first bans federal contractors from retaliating against workers who talk about their salaries; the second directs the Department of Labor to collect wage data from federal contractors, including the race, sex, and national origin of employees.  Both laws make it easier to identify discrimination, and thereby encourage proactive policing against discrimination for the 22 percent of the nation’s workforce whose employers contract with the federal government.

However, last month Congress failed, once again, to extend the same protections to the rest of us.  Senate Republicans have refused to vote on the Paycheck Fairness Act, legislation that would make it considerably more difficult for employers to pay women less than men for doing the same work, claiming they did so because the Act would also remove caps on punitive damages against businesses found guilty of discrimination and that this made it a “giveaway” to trial lawyers.  But punitive damages may only be assessed against an employer who has committed an especially reckless or malicious act of discrimination.  Moreover, any punitive damages award under the Equal Pay Act would benefit women who have been underpaid and would serve as a true deterrent against discrimination in the workplace.  Rather than worrying that American families are suffering because women, who often serve as primary or sole breadwinners in their households, are not being paid fairly, these lawmakers are concerned about juries punishing too harshly companies found guilty of egregious discrimination.

By refusing to pass legislation that would enhance protections against pay discrimination—enhancements that are demonstrably necessary given the persistence of pay inequality—Congress has left women to enforce their rights through the courts.  And women are doing just that.  At this moment, for example, across the country, current and former female employees of KPMG are banding together in a pay discrimination lawsuit against the firm.  Evidence in the case shows that men and women doing the same job, in the same location, for the same amount of time, with the same amount of experience and the same level of education, are paid differently.  According to expert analysis, the probability that KPMG’s compensation could be gender neutral is less than 1 in one hundred million.  Yet Senate Republicans proudly state they don’t want to make it more profitable for lawyers to help women bring these kinds of claims.  To put things in perspective, KPMG boasted global revenue of more than $23 billion last year.

And this is what struck me.  Funny as Silverman’s fundraising effort may be, it is, unfortunately, not a joke.  It is, as the video makes clear, a by-any-means-necessary effort to combat a serious societal problem until our government starts prioritizing equality, and the financial security of American families.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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