Image Credit: Disney
Disney is actively trying to prevent class action certification of a suit brought by a group of ten female employees who allege that Disney has been violating California’s Fair Pay Act by paying its male employees more than its female employees, despite the fact that these employees are performing the same or substantially similar work.
Back in April of 2019, two women, LaRonda Rasmussen and Karen Moore, filed a putative class action against Disney. Filed in Los Angeles County Superior Court, these two women alleged that Disney discriminates against female workers in the form of unequal pay between men and women employees who perform the same or substantially similar work. Both Rasmussen and Moore have been higher-level Disney executives for over a decade (over two in Moore’s case), and each claim that she is paid less than men who perform similar work at the company. The original complaint seeks back pay, lost benefits, and other compensation.
Once the suit was filed, Disney intended on challenging the class action lawsuit, claiming that Rasmussen and Moore could not fairly represent all women at the company, given the vast number of people that Disney employs. The attorneys for the plaintiffs amended the lawsuit to include eight additional women as plaintiffs, each employed in different divisions at Disney, in the hopes to address the alleged gender pay discrimination at the company.
Though a version of California’s Fair Pay Act has been in effect since 1949, it has been largely useless in gender pay discrimination suits due to loopholes that allowed companies to easily justify gender wage gaps. Courts cited the language “equal pay for equal work” to render the statute applicable only when there was pay disparity between a man and woman who held the exact same job title.
However, a few years ago, then-Governor Jerry Brown signed amendments to the law expanding its scope of coverage by requiring companies to justify salary differentials between employees doing “substantially similar” work. The changes to the law enable female workers to openly ask for and discuss co-workers’ salary information, while protecting them from employer retaliation. In fact, Rasmussen already took advantage of the expanded law when she filed a complaint in 2017 with Disney’s Human Resources Department about the unequal pay, asking for an audit. The audit found that men were paid more, but Disney maintained that the pay disparity was “not due to gender.”
According to Disney’s most recent filings, there have been no cases under the California Fair Pay Act that have ever been certified for class action. To proceed as a class action, the plaintiffs must convince the judge that there is a community of interest among an ascertainable class. Proving this requires predominant common questions of law or fact among the potential class as well as class representatives who can adequately represent the class and who have claims typical of the class.
Disney maintains that individual questions predominate here, and that the ten plaintiffs do not adequately represent other female employees who work in the many different divisions of the company. Even despite the added plaintiffs, Disney maintains that it is too large of a company to be held accountable in this manner. In a twenty-two page filing to get the class struck, Disney argues that “[t]he comparisons Plaintiffs seek to make – across different jobs, different levels and with potentially unspecified other differences – would demand an individual-by-individual review of the duties, skills, effort, responsibility, and working conditions of each woman in every job, compared to each man in every other job, to identify the correct comparator pool.” Thus, Disney demands that the women suing it for violating the California Fair Pay Act must do so on an individual basis.
This suit comes at a time when many media and other companies are committing themselves to California’s Equal Pay Pledge. These companies have committed to conducting annual company-wide gender pay analysis, reviewing hiring and promotion processes, and engaging in procedures to reduce unconscious bias and structural barriers in order to promote best practices that will close the pay gap. Companies as large as Apple, AT&T Communications, Inc., and Airbnb have been among the inaugural signatories. Notably, Disney has not yet signed the pledge for its over 60,000 California employees.
Lawyers for Disney and the plaintiffs are scheduled to appear in the Los Angeles County Superior Court on December 11 for oral arguments regarding whether this class action should move forward.
Stay tuned for future developments.
Liz Costello, University at Buffalo School of Law, Class of 2020. Liz is the Treasurer of the Buffalo Sports and Entertainment Law Society, an Articles Editor of the Buffalo Law Review, and an anticipated associate at Rupp Baase Pfalzgraf Cunningham LLC. Having grown up in Los Angeles with an entertainment attorney mother, Liz is especially interested in the legal issues surrounding music, film, television, and sports. Her favorite activities include going to local live music and sporting events.