James M. Finberg

In two different lawsuits against technology titans, Finberg is applying the spirit of a recent California law banning the practice of asking prior pay of candidates.

Finberg’s cases echo the sentiment behind AB 168, signed into law in October and effective Jan. 1: that asking prior pay perpetuates the gender wage gap because former salaries are institutionally lower for women.

“California has been taking steps under state law to make sure that employers don’t use prior pay to set initial salary, because since women are paid less, it institutionalizes gender discrimination and as of January of this year companies can’t even ask,” he said.

Finberg’s case against Google LLC passed a challenge to class certification earlier this year, and encompasses over 100 distinct jobs at the company under the umbrella of his representative plaintiffs’ positions.

In March, Google tried to demur two positions covered by the lawsuit and strike them from the complaint, arguing that the plaintiffs cannot represent them, having never worked the specific jobs. The judge rebuffed that argument, finding that the allegedly discriminatory practices apply equally to the jobs, enough to keep them tied in. Ellis v. Google, LLC, CGC-17-561299 (S.F. Super. Ct., filed Sept. 24, 2017).

The other suit, filed against Oracle, similarly argues that the company “has discriminated against its female employees by systematically paying them lower wage rates than Oracle pays to male employees performing equal and substantially similar work.” Jewett v. Oracle America, Inc., 17CIV02669 (San Mateo Super. Ct., filed June 16, 2017).

In both cases, the company insisted it controlled for job title, full-time status, career level, specialty and other job aspects. However, the practice of rolling prior pay into salary tiers yielded a wage gap. That, according to Finberg, is where the rub lies.

“Prior pay is connected to job aspects like tasks and responsibilities, and that’s fine to use, but you can’t use the pay itself,” he said.

Finberg said he hopes his suits play a part in the sweeping changes happening in Silicon Valley, where the cradle of technological innovation in the U.S. has seen multiple companies rocked by pervasive gender-fueled controversy.

“Ideally we will change Silicon Valley, starting with two of the most large and influential companies, towards equality. If we are able to accomplish that, the idea isn’t just back pay. It’s equal pay moving forward and influencing other companies moving forward. Hopefully that idea spreads more widely,” he said.

— Andy Serbe