“Almost nowhere else in Europe women earn so much less than men,” says investigative journalist and Thomas Mann Fellow Birte Meier about the gender pay gap in Germany. But what can Germany learn from the U.S., specifically California, when it comes to laws that regulate equal pay? Birte Meier holds a master’s degree in North American Studies, Modern History, and Journalism. Since 2007, she has been a ZDF editor, producing investigative stories on politics and business — primarily on digitalization, globalization, and the transformation of the market economy and democracy.
The video of Birte Meier’s talk can be viewed below.
“I don’t need your presents tonight,” pop star Miley Cyrus sang a few years ago, lolling lasciviously on the guest couch of the Tonight Show: “Don’t want diamonds, cash or stocks. / I can buy my own damn stuff … / A girl’s best friend is equal pay.”
In the original version of “Santa Baby” from 1953, Eartha Kitt hat demanded something entirely different: presents — checks, a convertible, a yacht. “Been an awful good girl. / Think of all the fun I’ve missed. / Think of all the fella’s that I haven’t kissed.” A good girl requests to be rewarded for chaste behavior.
How does all this relate to the home of the Mann family?
The grandmother of Thomas’s wife Katia was the well-known writer and feminist Hedwig Dohm. Back in 1867, she called paying women less for equal work a “mean and disgraceful injustice.”
Mean and disgraceful because it’s not just about checks or cash — or the lack of retirement provisions after the small difference has grown into a huge gap over a lifetime of work. Instead, equal pay for equal work also is about the freedom to live a life like a man: Free from the impertinence of being belittled.
“Women do not want any demonstration of mercy or any privileges, they do not beg for benefaction or alms. They demand justice,” Hedwig Dohm wrote in Der Frauen Natur und Recht (The Nature and Right of Women). She was outraged how unabashedly employers in the area of telegraphy underpaid women: “Either you take the salary we offer you, or you will have to leave our professional circle, for keep in mind it is only our kindness that allows you access, not your right.”
Kindness or right? Basically, in Germany the attitude has hardly changed: Equal pay is still considered as “nice-to-have” rather than a fundamental right. Almost nowhere else in Europe women earn so much less than men.
In California, on the other hand, a different culture prevails — one that focuses on the law. Thus, the gender pay gap fell to 12% — just two-thirds of Germany’s.
Here, women sue as a matter of course, for example, some 11,000 against Google/Alphabet and others against software corporation Oracle or parcel delivery service UPS. Female athletes roll up surfing competitions and soccer matches alike. Jennifer Lawrence gets paid five million dollars less than Leonardo di Caprio for the lead role in Don’t speak up? Vanity Fair writes about it.
California’s Equal Pay law was drastically tightened in 2015. For example, employers are no longer allowed to forbid employees from talking about salaries. How else would women be able to find out whether they are being paid fairly?
Every year, California goes even further. Wage discrimination often remains invisible. Thus, companies must now disclose their anonymized salary data to the state, broken down by job category, gender and ethnicity. If they can’t explain pay gaps, the state takes them to court. “Vigorous enforcement of California´s civil rights and labor laws” is a “priority,” the Department of Fair Employment and Housing proudly proclaimed in a press release last summer, when it sued the manufacturer of the video game World of Warcraft, for equal pay and other discrimination.
Germany is different. Here, the state does very little if women demand equal pay. On paper, their right is derived from European law and the German Constitution. But in practice, the claims used to fail because lower labor courts arbitrarily deviated from European law: Women had to prove they earned less because of their gender. How is that supposed to work?
The Federal Labor Court finally stopped this practice in January 2021. Already one year earlier, its judges had harshly criticized that German federal governments had failed to fully incorporate binding European anti-discrimination directives into German law — which they should have done since 1976.
So for more than 45 years, politics and courts have been withholding from female citizens their rights and turned them into supplicants instead — just like the Fräuleins vom Amt (The Girls from the Offices) — whom their employers treated thus, as Hedwig Dohm put it: “Instead of being just, one is at times kind to women. At times. When it is about real goods such as money, one prefers, as a rule, injustice and a reduction of the salary.”
German corporate lawyers now face a steep learning curve. What has been the norm in the U.K. and the U.S. for decades, finally applies to them, too: If a woman earns less than a man for equal work, the employer must justify this — whether it happens by mistake or intentionally is completely irrelevant.
“A belated bombshell,” law firms now marvel at the landmark ruling on the reversal of the burden of proof. They advise companies to urgently review their pay practices. Equal pay lawsuits, which so far have “often been doomed to failure,” would likely lead to “high back payments and salary adjustments” in the future.
Viewed from the Thomas Mann House in Los Angeles, this sounds a bit odd. Hadn’t German employers always claimed there was no discrimination at all? In the U.S., companies have long been reviewing their pay practices, making discreet adjustments where necessary - for fear of expensive lawsuits. Managers are learning that they can’t turn down women who demand justice and reject presents as seemingly ungrateful, loosely based on “Santa Baby”: Bad girls don’t get rewards.
In Germany, there is little talk about what women face when they put in a complaint. Discrimination claims are generally messier than others, knows employment attorney Kelly Dermody from San Francisco, who has already led several equal pay claims to success. For those in charge, it’s not just a matter of money, but also of honor: No one wants to be accused of being biased or paying sexist wages. So they would regularly discredit individual plaintiffs as incompetent, lazy or crazy: “character assassination”, Dermody says.
American juries often punish retaliation with hefty punitive damages — real compensation for massive rights violations. A former Long Beach marketing manager recounts how colleagues tried to spy and pin dirt on her when she sued a construction company for equal pay. In hindsight, though, she says, “I should actually write a thank-you letter to my tormentors. Every single one of their harassments was worth about $50,000.”
Settlements might even end up costing millions because women may file a class action. Thwarting thousands of plaintiffs will prove difficult for even the most hardened supervisors. Thus today, the gender pay gap in California remains scandalously high for those who find it difficult to take legal action due to lack of money or residence permits, like Latin or black women.
In Germany, by contrast, unwilling courts play into the hands of vindictive bosses. The prospect of getting entangled in seemingly endless lawsuits drives women into cheap settlements. Thus, much-needed precedent-setting rulings are lacking, and disgrace is hushed up.
“Women must finally be able to earn as much as men,” then-Chancellor Angela Merkel demanded. It is the new federal government that wants to enforce this — at least a little bit: No longer shall individual plaintiffs need to go to court, but in their place associations or unions. Of course, a proper law would be even better. But at least the “class action light”, as proposed in the coalition agreement, would make it easier for women to successfully claim their rights.
Hedwig Dohm was mistaken in one crucial issue: Even the women’s suffrage law, introduced in 1918, did not close the wage gap. Women are still too hesitant to demand, too great are fear of retaliation and the shame that comes with ignominious pay. Also, there is a lack of anger. In California, a hack of the entertainment company Sony helped women get the strict law passed: actresses and other employees had made their rage public when they learned in 2014 how fabulously better their male colleagues were paid. Only when salary data no longer remains essential knowledge, serving to keep men and women at odds, can the screaming injustice unleash its political force. Then — at some point — women in Germany will also be free to say: Presents? I don’t need them. I already earn what I deserve: equal pay.