London Eye

Gender Pay Gap: discrimination or “biological differences”?

Published: 22nd September 2017

Author: Claire Dewhurst

There was a lot of press this summer about the significant pay disparity between males and females at the BBC after the organisation released salary details of all employees earning over £150,000 pa. Gender pay inequality is not a new issue: the Equal Pay Act was introduced in 1970, but its effects have been incremental. A 2016 report by Deloitte indicates that while the gender pay gap is closing, pay parity between men and women in the UK is not forecast to be achieved until 2069 – almost 100 years after the Equal Pay Act was introduced.

So why, given the fact the Equal Pay Act has been in force for nearly 40 years already, does such a pay gap continue to exist?  Salma Hayek recently commented in Net a Porter’s online magazine the Edit that she believes that “women work harder than men and are more demanding of themselves, yet they have the sensation they don’t do enough, and therefore they are less daring about asking for a better position or salary.  Men do a lot less, they are less demanding on themselves and their standards are lower, yet they feel entitled to ask for a raise or a promotion.”  Putting to one side Ms Hayek’s controversial views – while she highlights the impact of what she perceives as male entitlement, she does not identify a cause.  Is this feeling symptomatic of biological differences or is it symptomatic of the environment? 

James Damore is a former Google employee infamous for releasing a paper setting out his view that the gender imbalance within the tech industry was a function of biological difference rather than discrimination.  He asserted women’s priorities focused more around work-life balance, whereas men have a higher drive for status.  He was promptly dismissed by Google, but did he have a point?

My understanding is that while there is strong evidence that men and women do have different emotional levels and abilities, the difference is small to moderate in individual workplaces (i.e. when comparing like roles) so not significantly relevant to performance .  Biological differences are therefore only part of the story.  While gender equality has come a long way in recent history, I continue to be aware of the regularity of everyday sexism towards both sexes.  It is apparently acceptable to be derogatory and offensive towards the other sex when engaging with those of the same gender. Lewd and offensive comments made by Donald Trump in 2005 and released during the most recent presidential election were dismissed as “locker room banter”, and John Ryder QC gave a similar excuse when defending the recently imprisoned police officer, Adrian Pogmore who used the force helicopter to film people inappropriately.  Equally, it is seen to be acceptable for women to make negative comments and sweeping generalisations about men – Salma Hayek’s comments referred to above are, in my view, a good example of this.  Some excuse it as “banter” or as perceived common knowledge but these sorts of comments create a greater divide between the sexes with each “side” wanting to respond and defend those of their fellow gender thereby perpetuating both conscious and subconscious bias. This “battle of the sexes” is not helping bridge the gender pay gap.

So what can businesses do to support gender equality in the workplace and in turn reduce the disparity in pay?

  1. Provide managers and leaders with the right tools.  Those with managerial responsibilities should be provided with training to assist them in distinguishing  between “banter” and inappropriate discriminatory comments and dealing with such issues.  This is often a delicate balance, and what might be appropriate outside of the workplace among friends who share similar views and sense of humour might not be appropriate in the workplace.  Remember the Equality Act states that the person bringing a claim need not share the characteristic which is being discriminated against, they need only be offended by the comments made.
  2. Provide Equal Opportunities training to all staff.  Not only should this help to limit the risk of discrimination happening it is also one of the few steps that will help an organisation defend a discrimination claim should one of their employees decide to act in a way that is inconsistent with the training. Training can also make people more aware of their own unconscious biases, enabling them to prevent it from impacting their decision making with regard to recruitment, salary reviews etc.
  3. Support women returning to work. The report by Deloitte highlighted that a disproportionate number of women are working in roles that are not well paid. It identified balancing the competing pressures of work and home as a cause for this. Having effective flexible working arrangements and using technology to enable more people to work in non-traditional ways (i.e. not just 9-5 in the office) will allow your business to retain valuable talent.
  4. Regularly review and compare pay within your organisation.  The additional scrutiny you apply may help root out subconscious bias before it becomes a costly and damaging issue.

If you would like to discuss any of these issues further please do not hesitate to me, or any of the other members of the Hine Legal Team

Hine Legal


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