Volvo has settled a copyright-centric lawsuit after being sued in a California federal court last year for using another party’s photos for an alleged Instagram ad campaign. Photographer Jack Schroeder and model Britni Sumida accused the Swedish automaker of copyright infringement for using photos that Schroeder had taken of Sumida posing alongside a Volvo S60 as part of “a global advertising campaign” on Instagram without their authorization. After unsuccessfully attempting to get Volvo to cease its use of the images, Schroeder and Sumida filed suit in June 2020, setting out claims of copyright infringement, unfair competition, and misappropriation of likeness, with the latter resulting from Volvo’s unauthorized use of images featuring Sumida. 

In response to the lawsuit, Volvo filed an unsuccessful motion to dismiss in August, arguing that Schroeder and Sumida are actually the ones who were in the wrong due to their use of the Volvo “brand, image, reputation and substantial social media reach of a venerable automotive company to promote themselves professionally.” Volvo asserted that the plaintiffs’ claims that it “impermissibly shared [the] photographs and misappropriated Sumida’s image rights as part of an unauthorized ‘global advertising campaign’ are false and disingenuous,” as there was “no such advertising campaign.” Instead, Volvo claimed that it “simply used basic social media sharing/publishing platform features to re-post” Schroeder’s images of its S60 sedan “after Schroeder and others had already published (and tagged Volvo in) the photos on their own public social media accounts.” 

The crux of Volvo’s argument was that by posting the photos on Instagram in the first place, Schroeder granted it an implied license to re-post the photos in accordance with Instagram’s licensing terms. 

Beyond that, Volvo claimed that “by tagging [it] in the subject photographs’ – and sharing them with Volvo, “Schroeder granted [it] an implied non-exclusive license to share the photos on Instagram and on other social media sites.” Pointing to case law from the Ninth Circuit, Volvo stated that such a nonexclusive license “may … be implied from conduct,’” which is precisely what it happened in the case at hand, per Volvo, when Schroeder made the images accessible to the public and tagged Volvo in them.

On the heels of the court denying Volvo’s motion to dismiss after it refused to take judicial notice of an array of exhibits relied upon by the car-maker, Volvo filed its answer in September 2020, denying the bulk of the plaintiffs’ claims and setting out a handful of claims of its own. Primarily, Volvo (somewhat head-scratchingly) accused Schroeder and Sumida of trademark infringement for posting photos that “prominently displayed and featured Volvo’s name, Volvo’s distinct, trademark-protected logo, and a motor vehicle that bears unique design features immediately identifiable with Volvo’s brand and line of automotive products.” Because they tagged Volvo in posts featuring the S60 sedan, the car co. declared that “anyone searching for Volvo … would be able to find these photographs and videos” and could be confused “as to the source, origin, endorsement and sponsorship of the Volvo.” 

Volvo lawsuit

Specifically, Volvo alleged that “the infringing posts misrepresented to consumers and the automotive industry that Volvo had engaged Schroeder and/or Sumida to conduct the shoot and had authorized [them] to commercially exploit the images therefrom as part of a social media advertising campaign for the S60 Sedan.” 

Volvo also accused the Schroeder and Sumida of trademark dilution on the basis that it “works closely with a carefully selected group of advertising agencies and other professionals in the U.S. to develop marketing campaigns and messaging,” and that they “diluted Volvo’s famous, distinctive marks by appropriating the substantial investment Volvo made in its marks.” 

Fast forward to December 23 and counsel for Schroeder and Sumida alerted the court that the parties have “reached a settlement of this matter in full,” that a formal settlement agreement is being circulated between the parties for review and approval, and that the parties expect to file a stipulated dismissal of the entire action with each party bearing their own attorneys’ fees and costs. 

Issues Over Instagram Imagery

This case may be on the brink of coming to a close, but it, nonetheless, raises one of a number of questions that have come hand-in-hand with allegedly unauthorized use of imagery first posted on Instagram and other social media platforms. The overarching issue centers on Instagram’s terms and whether they provide users with a license that could shield them from copyright infringement liability should they use images first shared on its platform without the copyright holder’s consent. This has seen brands like Volvo come under fire for resharing copyright-protected imagery to their own accounts, but maybe more commonly, cases have come about in connection with publications’ practice of embedding imagery into online articles using social media sharing tools without the copyright holders’ authorization, prompting claims of copyright infringement. 

In terms of embedded imagery, this issue has been at the center of an array of cases in furtherance of what Frankfurt Kurnit Klein & Selz PC’s Craig Whitney recently called “one of the most hotly litigated issues in copyright law over the past two-plus years.” In one noteworthy case, Nicklen v. Sinclair Broadcast Group, Inc., a New York federal district court found that the unauthorized re-posting of copyright protected content online could run afoul of copyright law by infringing the copyright holder’s exclusive right to display the work regardless of whether a copy was created and stored on the alleged infringer’s own server – or whether the image was re-posted by using Instagram’s API. 

In reaching his decision, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York rejected the U.S. Court of Appeals for the Ninth Circuit’s “server test,” giving rise to a potential circuit split, as the Ninth Circuit “generally holds that embedding content from a third party’s social media account only violates the content owner’s copyright if a copy is stored on the defendant’s servers,” per Morrison Foerster’s Aaron Rubin, Julie O’Neill & Anthony M. Ramirez. (And Judge Rakoff is not the first SDNY judge to do so; Judge Katherine Forrest shot down the server test in a 2018 decision in Goldman v. Breitbart News Network.)

Shortly after Judge Rakoff denied Defendant Sinclair Broadcast’s motion to dismiss, a San Francisco federal court sided with Instagram in a proposed class action lawsuit, in which photographers Alexis Hunley and Matthew Brauer alleged that the social media site engaged in a “scheme to generate substantial revenue for its parent, Facebook, Inc.,” – now Meta – “by encouraging, inducing, and facilitating third parties to commit widespread copyright infringement.” According to the plaintiffs, Instagram is secondarily liable for copyright infringement for “encouraging third party online publishers … to use the embed tool [on its app] to display copyrighted works without [the necessary] license or permission from the copyright owners,” and in the process, has “misled the public” into believing that “anyone is free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos.” 

In a decision in September, Judge Charles Breyer of the U.S. District Court for the Northern District of California held that Instagram is not on the hook for copyright infringement because its embedding tool does not require a website publisher to store a copy of an image or video, thereby, upholding the Ninth Circuit’s server rule. 

Some of these squabbles – and potentially, new cases – over social media and the use of copyright-protected imagery are expected to carry into 2022, as companies, copyright holders, and courts continue to grapple with these issues. 

Directors need to act quickly to integrate sustainability into their company’s strategy, decisions, and oversight if they are not already doing so. In the current climate, there is a growing demand from investors and other stakeholders that companies take into account the impact of their business operations on the environment, society, and the economy, and they want companies’ boards to actively engage in integrating sustainability into the long-term strategy.

Promoting sustainability is a particularly high priority of the European Union. To this end, the EU is currently preparing a proposal for a European Directive on Sustainable Corporate Governance, which aims to introduce new rules on incorporating sustainability in long-term business strategies. Complementary to the proposal for a Corporate Sustainability Reporting Directive, which amends the existing reporting requirements on sustainability matters, this initiative should steer companies towards more long-term visions that incorporate sustainability, including their environmental, human, and social rights impact.

The initiative on Sustainable Corporate Governance seeks to push companies to focus more on long-term sustainable value creation instead of short-term value creation and better manage sustainability-related matters. We expect the proposal for a European Directive on Sustainable Corporate Governance to be published later this year. As the proposal may lead to far-reaching legal reforms for all companies doing business within the EU, here is a look at some of the anticipated new rules … 

Directors’ duty of care and liability

The European Commission is exploring the possibility of clarifying and expanding directors’ duties of care, the scope of which is not always clearly defined in all EU Member States. According to the European Commission, this lack of clarity leads to a short-term focus on financial interests of shareholders, and is at odds with achieving sustainable corporate governance.

The European Commission may introduce a duty of care that requires directors to consider the environmental, human rights, and social impacts of their activities, thereby, giving rise to a need to integrate sustainability risks, impacts and opportunities into their company’s strategy and decision-making. Adequate procedures and measurable targets may become mandatory to ensure stakeholder risk and impact are identified, prevented, and addressed. For example, companies may be required to limit their own environmental footprint, or to actively trace the conditions under which production processes further up the supply chain take place.

These procedures and targets could force directors to take a broader group of stakeholder interests, such as environmental issues, into account, and may even prevail in case of conflicts with a company’s commercial interests. Beyond that, the primary focus of the director on the interests and wellbeing of the company itself might be forced to shift towards other interests, with the European Commission looking at a broad range of stakeholders, such as employees, environmental organizations, or any individuals or groups impacted by operations of the company or its supply chain.

Still yet, directors may face new, significant liability risks if their duty of care is extended in favor of this broader group of stakeholders. The European Commission is examining whether it needs to strengthen enforcement mechanisms outside of internal board structures and general meetings of shareholders to include an enforcement role for stakeholder groups, such as those representing environmental concerns. In anticipation of the proposal, companies and its directors are encouraged to check their internal procedures and targets in order to determine whether they currently consider all stakeholders in their corporate strategy and decision-making processes.

Due diligence duty: Human rights & the environment

The European Parliament supports the European Commissions’ Sustainable Corporate Governance initiative, having adopted a legislative initiative report, including a draft directive, that sets out recommendations to the European Commission. The report introduces a new mandatory corporate due diligence duty.

The European Commission is now exploring this corporate due diligence duty requiring companies to establish and implement adequate processes for preventing, mitigating, and accounting for human rights, health, and environmental impacts in companies’ operations and supply chains, and is also considering if a mandatory corporate due diligence duty should be accompanied by an enforcement mechanism. Companies should check whether they already have policies in place and processes to take into account human rights and environmental due diligence in its business and supply chains.

Remuneration & Expertise

The European Commission may also introduce appropriate enforcement measures accompanying the (extended) duty of directors. Different approaches are being considered to ensure directors’ remunerations, for instance, are aligned with longer-term perspectives, such as non-financial performance. At the same time, the Commission is investigating the integration of sustainability risks and opportunities in business strategies, as well as the establishment of sustainability-related metrics that may be linked to the company’s sustainability targets or performance. 

Other potential measures include variable remuneration policies and targets for bonuses which include non-financial targets, such as sustainability factors.

Furthermore, the European Commission is considering what actions boards of directors will need to take to enhance their sustainability expertise, such as regularly assessing their expertise level on environmental, social and/or human rights matters and taking appropriate follow-up. Another possibility that is being considered in this same vein is a requirement on a number or percentage of directors to have environmental, social or human rights expertise.

Michelle Krekels is a senior associate at bureau Brandeis, where she specialized in dispute resolution. 

The Securities and Exchange Commission (“SEC”) has given the green-light to a proposal from Nasdaq that will refashion the public disclosure requirements for companies listed on the stock exchange. According to the New York-based stock exchange, the aim of the proposal – which was first introduced in early December 2020 and was given SEC approval on August 6 – is to “provide stakeholders with a better understanding of [a] company’s current board composition and enhance investor confidence that all listed companies are considering diversity in the context of selecting directors.” 

The since-approved proposal that Nasdaq first presented to the SEC last year requires that all Nasdaq-listed companies publicly disclose board-level diversity statistics via Nasdaq’s proposed disclosure framework within one year of the SEC’s approval of the rule. Rule 5605(f) generally requires companies listed on Nasdaq’s U.S. exchange to have at least two diverse directors, including: one self-identified woman director, and one director, who self-identifies as an underrepresented minority – which Nasdaq defines as “Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander or Two or More Races or Ethnicities” – or as LGBTQ+.

If a company does not satisfy both of these criteria, the company must: (1) specify the particular aspects of board diversity it fails to satisfy; and (2) provide the reasons why it does not have two diverse directors. Such disclosure must be provided in advance of a company’s next annual meeting of shareholders in its proxy or information statement (or Form 10-K or 20-F, if it does not file a proxy) or on its website. 

Since its introduction, Nasdaq’s proposal has been the subject of mixed responses. Counsel for the stock exchange alerted the SEC in a letter on February 5 that 86 percent of the 162 substantive comment letters filed in connection with the proposal supported the adoption of the new rules, which aim to make up for a large-scale lack self-reporting by publicly-traded companies when it comes to diversity figures for C-suite executives and board members. Yet, not all interested parties were in board, with twelve Republican Senators on the U.S. Senate Banking Committee, for instance, submitting a letter to the SEC in February, urging the securities regulator to shoot down Nasdaq’s proposal on the basis that it would “interfere with boards’ duties to their shareholders, violate securities disclosure principles and could impose costs on companies.”

In response to pushback, Nasdaq submitted a revised proposal in which it amended some of its previously set-out points. Among other things, the amended version proposed that companies with smaller boards (i.e., those with five or fewer directors – would need to include one diverse director, instead of the previously proposed two. Another change allows for extra time for newly-listed companies to become complaint with the diversity rules; they would have an additional two-year period after the phase-in period to fully meet the diversity objective.

Meanwhile, Nasdaq added a one-year grace period in the event a vacancy on the board brings a company under the recommended diversity objective.

An SEC Split

Reflecting on the approval of the Nasdaq proposal, SEC Chairman Gary Gensler said in a statement last week, “These rules will allow investors to gain a better understanding of Nasdaq-listed companies’ approach to board diversity, while ensuring that those companies have the flexibility to make decisions that best serve their shareholders.” Not all of the SEC’s commissioners were on board, of course, with Commissioner Hester Peirce (R) voting against the proposal, and Commissioner Elad Roisman (R) issuing a partial dissent, in which he anticipated future legal issues being born from the new rule given the SEC’s role as the “adjudicating body for exchange delisting decisions.” One of Roisman’s “serious concerns” on this front stems from the fact that “the SEC – without any doubt, a state actor – may need to take future action in which the agency must consider disclosure of the racial, ethnic, gender, or LGTBQ+ status of individual directors.”

More broadly, the 3-2 split on the SEC “reflects a broad and deepening divide concerning recent SEC moves in the ESG space, including disclosures related to climate risk,” Mintz stated in a client note this week. “The significant dissent among the SEC commissioners suggests that there will be substantial opposition to any new disclosure requirements focusing on ESG, and that efforts may be made by the regulated industries to delay any rule-making in the expectation of a different political balance on the SEC within a few years.” 

Additional rule-making is, nonetheless, expected in light of increasing demand for board diversity and related disclosures, paired with a larger push for attention to ESG issues more generally and uniform reporting by publicly-traded entities on this front.  

As for timing of the newly-approval Nasdaq rule, the stock exchange states in its proposal that the diversity disclosure mandates will come into effect on the later of “one calendar year from the date of SEC approval of the revised proposal” or … “the date the proxy statement is filed for a company’s annual meeting during the calendar year of such SEC approval date.”

A Larger Push

Nasdaq’s proposed requirements are the first of their kind, but the push for corporate diversity has found favor among lawmakers in states like California, Illinois, Massachusetts, and Pennsylvania, which have enacted laws governing board diversity for  publicly traded companies. In September, California Governor Gavin Newsom, for instance, signed into law AB 979, thereby, requiring that by the end of 2021, California-headquartered public companies have at least one director on their boards that is from an “underrepresented community.” Before that, Illinois Governor J.B. Pritzker implemented Public Act 101-0589 in August 2019, requiring that publicly-traded domestic and foreign corporations with principal executive offices in Illinois make additional reportings to the Secretary of State about the makeup of their executive directors and boards, as well as about their policies and practices for promoting diversity, equity, and inclusion, among other things. 

Meanwhile, “Some of the world’s biggest investors,” such as BlackRock Inc., Vanguard Group Inc. and State Street Global Advisors Inc. “have threatened to pull their money out of companies that do not show progress on certain environmental, social and governance issues, such as board diversity,” according to S&P Global. And at the same time, Goldman Sachs Group Inc. announced in June 2020 that it would stop underwriting IPOs for companies in the U.S. – and Europe – that do not have at least one diverse director. Such U.S.-specific activity follows from efforts – and in some cases, legislation – in Europe. Lawmakers in France, for example, passed a quota law of 2011 to order to increase gender representation on the boards of the country’s largest firms. 

Move over Revolve. The biggest influencer campaign of the moment is not pushing attire for previously-postponed weddings or for long-awaited Côte d’Azur holiday wardrobes. It is one that aims to persuade young Americans to get vaccinated. The New York Times revealed last week that the White House has enlisted more than fifty influencers – from heavily followed figures on gaming platform Twitch to those on TikTok, such as 17-year old creator Ellie Zeiler, who boasts upwards of 10 million followers – to help promote COVID-19 vaccinations. In furtherance of the broad social media push, influencers have shared question-and-answer sessions, and taken part in Instagram live events with the federal government’s top infectious disease expert and President Biden’s chief medical adviser Dr. Anthony Fauci, while singer Olivia Rodrigo paid a visit to the White House to call on young people to get vaccinated, and posted a selfie with the president with a similar message. 

A couple of months before 18-year-old Rodrigo’s heavily-publicized visit (which was not only believed to help boost vaccination rates among teens but also led to a 200 percent spike in spike in searches for vintage Chanel, according to Lyst, a nod to the pink S/S 1995 Chanel suit that the star wore), President Biden and Dr. Fauci aimed to reach young Americans by hosting a YouTube town hall with make-up artist Manny MUA, animal expert channel Brave Wilderness, and beauty YouTuber Jackie Aina – who collectively boast some 28 million YouTube subscribers – to discuss vaccinations. 

Still yet, the Times reports that as part of a larger effort, the White House has enlisted New York-based influencer-led creative agency Village Marketing and COVID vaccine campaign Made to Save for the specific purpose of enlisting influencers to back the cause. 

Not the First Push of its Kind

While certainly noteworthy, the move is, however, not the first of its kind. In fact, it comes less than a year after the United Kingdom government opted to enlist influencers in promote a COVID-specific endeavor. Not unlike how department store chain Nordstrom hired a handful of established social media figures to spread the word about its safety measures in an attempt to lure consumers back not stores last year, the UK relied upon several social media influencers and reality television stars to help promote the National Health Service’s test and trace service, a system that aims to track contact that an individual who tests positive for COVID-19 has had in other to prevent further spreading of the virus. 

When the NHS’s system failed to reach its target for the ninth week in a row last year, the government opted for a new strategy, and brought in Love Island stars Shaughna Phillips, Josh Denzel and Chris Hughes, to help encourage the public to take part in the service. Phillips, who has 1.5 million followers on her Instagram, posted a photo of herself, reminding her followers that “the best way for us all to get back to doing the things we love” is by getting tested for coronavirus. She alerted her followers that the NHS’s service is “totally free, quick and is vital to stop the spread of coronavirus.” Meanwhile, the World Health Organization has been relying on influencer marketing techniques of its own in order to promote coronavirus messaging since last spring. 

Interestingly, the practice of looking to influential figures to help promote the public good, including by way of vaccinations, dates back much further that 2020 and the COVID-19 pandemic.

“The power of celebrity had been harnessed in vaccination campaigns many times,” according to Western Sydney University School of Business professors Michelle O’Shea and Sarah Duffy Lecturer, School of Business, and Patrick van Esch, a Senior Lecturer in Marketing at Auckland University of Technology’s Business School. Most famously, they point to Elvis Presley, who was enlisted to receive his polio vaccine, as documented by members of the press on the set of “The Ed Sullivan Show” in October 1956 “as a way of encouraging take-up among teenagers.” 

In terms of the efficacy of these celebrity endorsements, O’Shea, Duffy, and van Esch say that research has shown that “celebrity endorsements can trigger biological, psychological and social responses in people that make them more trusting of what celebrities say and do,” which is precisely why brands regularly tap big-name figures to serve as the face of their brand and/or endorse their products – whether it be cologne or cars. That same type of response applies to celebrities’ “endorsement of health information,” the academics assert, noting that “neuroscience research supports these explanations, finding that celebrity endorsements activate regions in the brain involved in making positive associations, building trust and encoding memories.” In short: famous figures are able to sell … vaccination campaigns, included. 

As for the parties involved in these campaigns, Frankfurt Kurnit Klein & Selz attorney Jordyn Eisenpress notes that “the Federal Trade Commission’s endorsement guides require clear and conspicuous disclosure of material connections (i.e., connections that are not reasonably expected by the audience that might materially affect the weight or credibility of the endorsement). ” In light of “the focus that the federal government has had on influencer disclosures over the last few years,” Eisenpress says that “it will be interesting to see whether the White House will require and enforce FTC-type disclosures here.”

Just over a decade ago, on January 29, 2009, newly inaugurated President Barack Obama signed his first bill into law: the Lilly Ledbetter Fair Pay Act of 2009. It was the latest legislative effort to close the persistently stubborn gap between how much women and men earn. At the time, women made just 77 cents of every dollar men earned – a level that had not improved all that much since the 1990s, according to Census data. While existing laws already prohibited gender-based wage discrimination, the Ledbetter Act gave workers more time to sue employers over the issue. And the hope was that it would make a big difference. So did it?

Ledbetter’s complaint

The Ledbetter Act overturned a Supreme Court case that ruled against Lilly Ledbetter, who worked as an area manager at Goodyear Tire and Rubber for more than 19 years. Over time, her pay slipped until she was earning 15 percent to 40 percent less than her male counterparts. When an anonymous note tipped her off about the extent of the disparity, Ledbetter filed a pay discrimination complaint under Title VII of the Civil Rights Act of 1964, a statute prohibiting employment discrimination on the basis of sex, race, color, national origin and religion. A jury found in her favor and awarded more than $3.5 million in damages.

The case was appealed all the way to the Supreme Court, which in 2007 ruled 5-4 that employees must file a complaint within 180 days after their employer makes a pay decision. The fact that the discrimination was embedded in each paycheck and that Ledbetter didn’t know of the disparity for many years did not matter. Time had run out on her claim. 

In a vehement dissent read from the bench, Justice Ruth Bader Ginsburg noted that the ruling denied workplace realities. She pointed out that since employees often lack information about pay disparities, which can accumulate slowly over time, they shouldn’t be given such a narrow window in which to file a complaint. Ultimately, the 111th Congress and President Obama agreed with Justice Ginsburg and nullified the decision. The Ledbetter Act makes clear that the statute of limitations for filing a wage discrimination claim resets with each discriminatory paycheck.

A disappointing impact

The law’s impact, however, has been disappointing. The rate of new wage discrimination cases hasn’t budged, primarily because employees still lack information about their co-workers’ pay. Salary discussions are taboo in most workplaces, and some employers, like Ledbetter’s, forbid it. Put simply, a woman cannot file a complaint if she doesn’t know she’s being shortchanged. 

Title VII wage claims are hard to prove for other reasons too. Title VII generally requires proof that employers acted with discriminatory intent. However, much discrimination in today’s workplace is not intentional but fueled by unconscious gender stereotypes. For instance, studies show that workers receive better performance evaluations when they conform to gender stereotypes, such as dominance for men and passivity for women. In one study, participants were asked to award merit-based bonuses to fictional employees with identical personnel files. Men got higher bonuses than women.

The bottom line: Women today earn about 80 cents for every dollar men make earn, up just a few cents since 2009. And for women of color, the gap is even starker. Latinas earn 52 cents to the dollar of white men, while African American women earn just 61 cents. Within racial groups, a pay gap between men and women persists, although it is narrower.

Narrow interpretations

Of course, employees who believe they are being discriminated against based on gender can also turn to the Equal Pay Act. This act, signed into law in 1963 when women earned only 60 cents for every dollar men earned, does not require a showing of employer intent to discriminate. The act was the first to prohibit employers from paying men more than women who perform equal work. 

The pay gap has since narrowed by about 20 cents, but not because of anti-discrimination laws. The main drivers have been women’s increased educational attainment and entry into the workforce. 

The Equal Pay Act has not been effective because courts read the law narrowly. They generally require that women plaintiffs identify a man with an identical job and resume for comparison. Given that men and women are tracked into different occupations, this can often be impossible. Moreover, both Title VII and the Equal Pay Act allow employers to defend pay differentials on the basis of “any factor other than sex.” For example, courts have permitted a limitless array of employer excuses for paying women less that are themselves rooted in gender bias, such as women’s weaker salary bargaining skill, lesser management potential or lower prior salary history.

These statutory interpretations may sound technical, but they matter. They help explain why the gap appears stuck at 80 cents and why some estimate it’ll be at least until 2059 until pay equity in the United States is reached. 

Why it persists

Another reason the gap is so stubborn is that men and women are steered into different occupations, and male-dominated occupations pay more for comparable work. Even within a traditionally male field such as computer programming, women are paid less. And, as women move into a field, the entire occupation’s wages sink. Importantly, economists have found that discrimination feeds as much as 38 percent of the gender gap. 

Skeptics of the gender gap argue that it results from women’s choices to work fewer hours and stay home to raise children. It is true, women bear a larger responsibility for child rearing and thus may cut back their hours or take time off from the workplace – especially because the United States is the only developed country without paid maternity leave and child care is expensive

But while mothers face a “motherhood penalty” in opportunities and pay, fathers reap a “fatherhood bonus.” And so-called “choices” cannot explain why female recent college graduates are paid 82 percent of their male counterparts or why the gap widens at the top. Professional women with advanced degrees who work full-time face a gender gap of 74 percent.

Closing the gender gap

Closing the gender pay gap is not rocket science – even though recently graduated female rocket scientists earn 89 cents on the dollar to their male peers. Steps that would help include prohibiting employers from using salary history in setting wages, banning employer retaliation against employees who share wage information, providing greater transparency in pay, and revising Title VII and the Equal Pay Act to better address workplace realities.

The proposed Paycheck Fairness Act – introduced repeatedly in Congress since 1997 but never passed – would codify many of these remedies at the federal level. And the Trump administration suspended an Obama-era requirement that employers report extensive pay data. While federal efforts stall, several states, including California, Oregon, Massachusetts, Maryland and New Jersey, have passed their own laws to close the gap. 

The economic gains from closing the gender pay gap are huge. Doing so would add about $513 billion to the economy because of the extra income generated, reduce poverty and do a lot to support American families since mothers are the sole or primary breadwinners in about half of them. Passing the Lilly Ledbetter Act was a start, and now we owe it to American workers to enact laws that close the gap once and for all.

Michele Gilman is a Venable Professor of Law at the University of Baltimore. (This article was initially published by The Conversation)