Thank you, Hollywood, for providing law professors with the perfect exam hypothetical about pay discrimination. Here’s how it goes:
Mark Wahlberg and Michelle Williams co-starred in a movie directed by Ridley Scott. The movie, entitled All the Money in the World, is based on the true story about that unfortunate time when J. Paul Getty, then the richest man in the world, refused to pay ransom to his grandson’s kidnappers, leading them to cut off his ear and mail it to his mother. That lovely grandfather was originally played by Kevin Spacey. Unfortunately, after the movie was shot, Kevin Spacey, like so many other men this past year, was credibly accused of multiple instances of sexual misconduct.
Ridley Scott made the decision to replace Kevin Spacey with Christopher Plummer, which required an expensive reshoot of each scene in which Spacey appeared, 22 in all, over Thanksgiving and just six weeks before the movie’s release. Michelle Williams, who played the victim’s mother in the movie, and was billed as the lead actress, was told that people were volunteering their time for the reshoots. She readily agreed, given the likely adverse consequences of releasing a movie starring a now-hated Hollywood star, and agreed to work for the union-minimum per diem of $80, totaling about $1000. Ridley Scott gave interviews in which he said that although the reshoot cost $10 million, Williams and Wahlberg had both done the reshoot for free. Everyone seemed to understand that the alternative would be to shelve the movie that now starred a very unpopular actor or release a movie that seemed to ignore the shouts of #metoo coming from around the globe.
But Scott’s claim was false. It was later revealed that Mark Wahlberg, billed as only a supporting actor, did not volunteer his time, as Williams had done. Rather, he initially withheld consent to replacing Spacey with Plummer and agreed only after settling on a price of $1.5 million for the additional work, a cool 1500 times more than his co-star. Interestingly, both actors are represented by William Morris Endeavor (WME), although by different individual agents. After the disparity was made public, outrage ensued, and Wahlberg agreed to donate his entire $1.5 million reshoot salary to Time’s Up, a fund recently created by famous actresses to help “subsidize legal support for individuals who have experienced sexual harassment or related retaliation in the workplace.” Wahlberg’s donation was made in Michelle Williams’s name, and WME followed with a $500,000 of its own, also in her name.
The exam questions that would follow the hypothetical facts might go something like this. Does the pay disparity between Wahlberg and Williams constitute illegal pay discrimination? If so, is the studio, the agency, Wahlberg, or Williams most at fault? Of what relevance is the fact that Williams agreed to work on these unfavorable terms without trying to bargain for more compensation? Did Wahlberg do anything wrong in driving a hard bargain given the reason for the reshoot? Did his decision to donate his salary to a women’s defense fund rectify any harm created by the pay disparity in the first place? What, if any, connection does this fairly unique situation have to the broader issue of pay inequity in the workplace or gender equality more generally?
The Law of Pay Discrimination
A public service announcement from the late 1960s (available here on YouTube) tunes in to Batman and Robin tied up while a bomb ticks ominously in the background.
Fortunately, Batgirl barges in. Batman yells, “Quick, Batgirl, untie us before it’s too late.” But Batgirl tells them, “It’s already too late. I’ve worked for you a long time, and I’m paid less than Robin.”
“Holy discontent,” says Robin, surprised by Batgirl’s uppity remark. As for Batman, he tells Batgirl that this is “no time for jokes.” Batgirl persists: “It’s no joke. It’s the federal equal pay law: Same employer means equal pay for men and women.” Now, Batgirl has Robin’s attention; he exhorts, “Holy Act of Congress!” But Batman is not so impressed and tries to put Batgirl off, asking if we can “talk about this later.”
The scene ends as the narrator asks: “Will Batgirl save the dynamic duo? Will she get equal pay? Tune in tomorrow or contact the wage and hour division listed in your phone book under the US Department of Labor.”
This simple concept – men and women who do the same job should be paid the same – reflects the mandate of the Equal Pay Act, a federal law enacted in 1963. The Equal Pay Act does not require proof of the how or why of a pay disparity. It focuses on a single question: does an employer pay a man and a woman differently to do equal work? In other words, the disparity is the discrimination.
Title VII, the main federal anti-discrimination law also prohibits pay discrimination, but only if there is proof that an employer took sex into account in making pay decisions. Intent, in other words, is a component of the claim, although an unexplained disparity can be the basis for the drawing of an inference of intent.
If this were a regular employment situation, there is no question that Williams would have an Equal Pay Act claim. The studio could try to invoke an affirmative defense under the Equal Pay Act, which excuses pay disparities that can be explained by “a factor other than sex.” But it’s unlikely that “she didn’t ask for more” would be a sufficient explanation.
But this Hollywood, in so many ways, is not like regular life. Actors and actresses work generally as independent contractors rather than as employees and thus may not benefit from these protections. A federal law called Section 1981 protects against race discrimination in contracting, as well as in employment and education, but it does not extend to sex discrimination. There may be an applicable state law that covers sex discrimination, but federal law is unlikely to apply.
Even if Not Unlawful, Is the Pay Disparity Wrong?
This is an easy question – points even for a student who does not know much about law. Whether the equal pay laws apply to a particular transaction or not, they represent a commitment to fairness. And fairness in the employment context means, among other things, allowing individuals to capitalize on their natural talents and abilities regardless of accidents of birth like race, sex, or disability. This requires that employers view men and women with the same lens and value their work equally. In the Williams-Wahlberg situation, they were literally being asked to do the same thing, for the same reason, and to make the same sacrifices. They were co-stars in this movie, but she received top billing and may well end up with an Oscar nomination.
But what if he asked for more money than she did? That fact relates to two common problems at the core of pay inequities—and a third that is somewhat unique to this particular instance of pay inequity. The unique problem is that the reason for the additional work was the revelation that Kevin Spacey had been accused of sexual misconduct by fifteen people, some as young as fourteen at the time of the alleged misconduct. Amid the sexual misconduct epidemic and the passionate #metoo social movement, Williams may have felt particularly strongly about making sure her new movie was not blind to the problem or the responsive movement. She thus may have foregone salary in this particular situation, even if she wouldn’t have in a different one. As a man, maybe he didn’t feel compelled in the same way, although certainly he shouldn’t be blind to the idea that the burden of fixing an epidemic of male sexual misconduct should not fall exclusively on women.
This situation invokes more typical issues, too. Both pay secrecy and gendered negotiation styles are both in play. That she put the needs of the group ahead of her own self-interest is more typical of women in the context of pay negotiations. One response to her is that she got paid less because she bargained less hard. Williams told USA Today that she “appreciated so much that they were making this massive effort” to reshoot the film that she agreed to be “wherever they needed me, whenever they needed me. . . . And they could have my salary; they could have my holiday, whatever they wanted.”
So maybe this whole situation is her fault? She shouldn’t have acted like such a woman. . . . But research tells us it’s not that simple. It’s true that women do not bargain as hard for salary—we know this in part from the important book by Sara Laschever and Linda Babcock, Women Don’t Ask: Negotiation and the Gender Divide (2003). But it is also true that when they do try to negotiate for pay or benefits, they are more likely to be penalized for doing so. Criticizing women for not pushing a harder bargain seems unfair if they are damned if they do, damned if they don’t.
Pay secrecy plays an important role in the Williams-Wahlberg situation as it does in most pay disparities. She agreed to work for nothing in part because she was told everyone was working for nothing. And even after the studio committed to pay Wahlberg $1.5 million, the one person who created the disparity—Ridley Scott—then gave a very public interview in which he stated, falsely, that everyone was doing the additional work for nothing. Williams thus had no reason to know she was being had when she agreed initially, nor any reason to suspect when the movie was released. This is entirely typical of the experience of women who are victims of pay discrimination.
As we learned from the high profile Lilly Ledbetter case (discussed here and here), the difficulty employees face in learning that pay discrimination has occurred allows it to go unchecked. Pay decisions are usually made in secret. And even though it is illegal to do under the National Labor Relations Act, many employers expressly prohibit employees from discussing pay with one another or inquiring about the pay of co-workers. (The National Women’s Law Center has compiled a fact sheet about the problem of pay secrecy.) And while an employee knows if he or she has been fired, a pay decision is not obviously or inherently adverse—the offer of a job and a starting salary or a raise may seem like a good thing, unless the employee is told, or later learns, that others were paid more to do a similar job. (Deborah Brake and I examine studies about other obstacles to perceiving and challenging discrimination here.)
Imagine Michelle Williams’s shock and humiliation upon reading on the internet one morning that she had been devalued in this absurd and unnecessary way. Ridley Scott knew he was paying comparable talent with a 1500:1 pay ratio, as did the agency that represented both stars. Michelle, however, did not know. Instead of the usual 80 cents on the dollar that women make compared to men, she made only 7/100 of a penny to his dollar. Mark Wahlberg probably should have been more sensitive to the reason for the reshoot rather than using the situation to extract such high compensation—there’s no doubt that he used the leverage he had by virtue of being the lone holdout. But at the end of the day, he behaved reasonably given the situation. He had leverage, and he used it. And, when he learned of the disparity (or, more likely, the outrage over the disparity), he did the right thing and donated his earnings to an important women’s cause deeply connected to the reason he earned the money in the first place.
At the end of the day, it was not Wahlberg’s responsibility to rectify this disparity. He is not the one who created it—nor knew of it and kept it a secret. Ridley Scott is responsible for this unfair situation, and the agency that represented Williams breached their responsibility to her. Accountability belongs to the employers and institutions that allow men and women to be paid differently, regardless of merit.
What happened to Michelle Williams is part and parcel of an enormous and intractable problem in the United States: the gender wage gap. Researchers disagree about the size of the gender wage gap, but not its existence. It exists at every level of earnings—from physicians and surgeons at the top (63 cents on the dollar) to teacher’s aides at the very bottom. Not surprisingly, the gap lasts throughout the employment life cycle and, due in large part to percentage based raises, grows over time. One aggregate measure shows that in their fifteen prime earning years, women earned only 38 percent of what men did. And although the gap narrowed significantly in the 1980s, it has hardly changed since. (Detailed information about the wage gap, and its change over time, is available on the National Committee on Pay Equity’s website here.) And study after study has concluded that some portion of the wage gap remains after controlling for every conceivable factor, meaning that discrimination must play some role.
The wage gap is actually significantly worse in Hollywood than it is in most sectors of the economy. This dark fact was thrust into the public eye a few years ago, when Sony Pictures suffered a hack, which revealed that Jennifer Lawrence was compensated far less than male co-stars, for no apparent reason other than her gender. The highest paid female actress last year, Emma Stone, earned less than half of the highest paid male actor, despite starring in, among other pictures, a movie that was nominated for the Oscar for Best Picture (La La Land). Actresses make on average thirty percent of what actors make. Against this backdrop, Hollywood studios and directors have an affirmative obligation to right this wrong—not to exacerbate it. They know who gets paid what, and it ought to be based on merit rather than sex.
Ridley Scott: You have most definitely earned a starring role in the next edition of my gender law textbook. But will you be portrayed as a villain or a hero? That will depend on whether you now donate the $1.5 million you should have paid Michelle Williams to Time’s Up or hoard it. Replacing Kevin Spacey was the right thing to do; making Michelle Williams pay the price was not.