The New York Times and Discrimination: Could Jill Abramson File a Lawsuit?

Sadly, cases involving allegations of discrimination are fairly common. Cases like this involving the executive editor of the New York Times, however, are not. Ever since Jill Abramson, the paper’s first female executive editor, was fired last Wednesday, rumors have been flying as to what exactly caused the split. Was she fired, or did she quit? Was there a legal fight, or was it over something entirely unrelated to Abramson herself? One particular story seems to have more truth to it than others. Abramson, who had held in the position for three years, reportedly discovered that her salary and benefits were less than her (male) predecessor, and went to the paper about the discrepancy.

It is illegal to pay women less than men for doing a similar or comparable job simply because of their gender, and a company that does this could certainly face a class action.

Days later she was fired, with the New York Times citing only “an issue with management in the newsroom.” There’s been no official confirmation that a pay dispute was behind Abramson’s leaving, but those in the know (Forbes, The New Yorker, Washington Post) seem to be fairly confident that money played a significant role. Jeffrey Dorfman, writing for Forbes, suggests that:

The issue of gender discrimination is a hugely emotive one and it’s tempting to jump to conclusions – especially when the Department of Labor reports that women earn an average of 77 cents for every dollar made by men. It might take some time for the whole truth about Abramson’s termination to come out, but the issue raises an interesting question. Could she take legal action against the paper? We already know she brought a lawyer to at least one meeting, and there are plenty of examples of class action lawsuits being used to bring about change in the face of illegal and discriminatory pay practices.

Federal law – specifically Title VII of the Civil Rights Act of 1964 – prohibits discrimination based on gender, among other protected characteristics, in all aspects of employment, including hiring, promotion, pay benefits, harassment and job classification. Multiple states also have their own laws prohibiting discrimination. In short, it is illegal to pay women less than men for doing a similar or comparable job simply because of their gender, and a company that does this could certainly face legal action. Furthermore, plaintiffs don’t even need to have evidence that the employer acted with a malicious intent to discriminate, such as emails from a corporate executive telling managers to pay women less than men.

Under the legal theory of disparate impact, an employee can challenge a company’s policies or procedures that have an adverse impact on protected groups of workers such as women, the disabled, and workers over the age of 40. Just as a company that uses criminal background checks to make hiring decisions may inadvertently discriminate against ethnic minorities, a company might pay women less without even being aware of it.

In cases where a seemingly harmless corporate policy has a disparate impact on protected employees, the employees may have valid grounds to file an employment discrimination class action.

It’s also worth noting that the New York Times has faced a gender discrimination suit before. The 1974 class action Boylan v. New York Times saw a “Women’s Caucus” take action against the paper for institutionalized sexism. (Almost all management positions at the time were held by men.) Things are meant to have improved since then – something that perhaps accounts for the intense media speculation over Abramson’s reasons for leaving the paper. As Think Progress succinctly put it in their article “The New York Times May Have Broken Civil Rights Laws By Firing Jill Abramson”:

So, could she file a class action on behalf of herself and all other women who allegedly suffered discrimination at the New York Times? Depending on the circumstances surrounding her firing, it’s absolutely possible. Will she, if the option’s there? That remains to be seen. The next few days are sure to include further revelations – as well as a welcome conversation about the inequality many women continue to face in the American workplace.