Ten female employees at The Walt Disney Company are demanding a chance to conduct a statistical analysis of pay data to prove disparities they allege occur throughout the studio’s workforce.
These women are leading a proposed class action against the conglomerate for allegedly violating the California’s Fair Pay Act. The present question before a Los Angeles judge is whether there exists enough commonality among the plaintiffs’ employment situations to have the case move forward as a group action.
In a motion filed in October, Disney attacked an amended complaint as an “assortment of individual claims, based on highly individualized allegations,” further arguing that these 10 women — working at various divisions of the company — shouldn’t be able to represent other female employees who work in animation, cable programming, cruise lines, vacation clubs, restaurants and so forth.
It’s not just an argument premised on “We’re too big to sue”; Disney contends that wage differentials among men and women are difficult to assess when seniority, merit, and other factors come into play. The company suggests that adjudicating claims on an individual basis would be more appropriate.
The suit presents a test of California’s Fair Pay Act, which was amended in 2015 upon recognition that the law was rarely utilized because succeeding on a claim was too difficult.
Now, the plaintiffs, represented by attorneys Lori Andrus and Jennie Anderson, are telling a judge that there is “plenty of glue” holding the claims together with the other women they seek to represent and that Disney shouldn’t be able to shortcut the discovery process and try the entire case at the outset.
“The Legislature has spoken,” states an opposition brief filed Wednesday. “Ten Women have spoken. Now it is up to the Court — exercising its broad authority to effectuate the statute’s intent — to determine whether Plaintiffs have adequately stated a claim under the Equal Pay Act for their case to proceed. They have.”
The plaintiffs point to allegations how compensation policies, practices, and procedures are consistent company-wide and that Disney human resources oversees all this. For example, the women point out how it is Disney’s practice when considering new hires to make job applicants reveal their compensation history, which they allege perpetuates gender discrimination.
What’s also clear from the new briefing is how plaintiffs are placing great expectation on a statistical analysis they hope will come.
“Pay equity audits are so effective at addressing potential violations of equal pay laws that law firms advising corporations about compliance routinely recommend them,” continues the opposition brief. “At a minimum, Plaintiffs anticipate that a statistical analysis of Disney’s pay data will show that women are paid less than their male counterparts even within job titles at Disney.”
As for Disney’s size and structure, the brief adds, “It is true that Disney employs a large workforce, but even in a big company, there is order. For example, Disney organizes i[t]s employees by job title (e.g., Manager, Senior Manager, Director). Each job title is associated with a salary range Plaintiffs allege a pattern of Disney placing women at the lower end of each salary range. Once Plaintiffs have access to Disney’s compensation data, they will be able to conduct a statistical analysis to prove the truth of those allegations.”
As for legitimate differences in pay that may arise from bona fide factor other than sex, such as education, training or experience, the plaintiffs say that any defenses are “pure conjecture.”
As the women put it, “Disney hopes to prevent any scrutiny of its compensation data by litigating its potential defenses before Plaintiffs have had the opportunity to prove their prima facie case. Disney cannot justify a demurrer by placing the cart before the horse.”
A Disney spokesperson responds in a statement.
“Disney is firmly committed to equitable pay and is prepared to engage with any individual who believes they are not paid equally,” says the spokesperson. “To suit their own purposes, plaintiffs’ counsel has wholly mischaracterized the company’s motion. What Disney is challenging is plaintiffs’ counsel’s attempt to invoke a class action procedure that is unsuited to the resolution of claims that are, by their nature, inherently individualized. In fact, we are not aware of any court that has approved this class action approach in similar cases.”