Federal agencies and the media have paid a great deal of recent attention to the continuing disparities in salaries between male and female employees. Some experts have argued that part of this disparity is based on different approaches by men and women toward salary negotiations. They assert that women on average are less likely to push for pay increases, resulting in lower pay in comparison to their male colleagues.

Whether these gender-based differences are actual or not, a new unpublished decision from the Fifth Circuit Court of Appeals shows that employers cannot rely on differences in employees’ negotiating styles to justify pay disparities between male and female employees. In Thibodeaux-Woody v. Houston Community College, the plaintiff alleged that she was hired at a substantially lower salary than a comparable male program manager. The employer defended the disparity by claiming that the male employee had not accepted the offered salary, and had counteroffered at a substantially higher rate.

The Fifth Circuit reversed a grant of summary judgment for the employer, remanding the case for jury trial. The court noted claims by the plaintiff that she inquired about her ability to negotiate a higher salary, but was told that the offer was final. If negotiation was not available to members of both sexes, it was a discriminatory employment practice under Title VII and the Equal Pay Act.

The Fifth Circuit’s opinion implies that if the plaintiff made absolutely no effort to negotiate her salary, her male colleague’s more aggressive approach would not result in a viable pay discrimination claim. However, given the ease with which the plaintiff can raise a factual dispute over her ability to negotiate, basing salaries on employees’ willingness to bargain invites later legal risk. A more prudent approach would be to base salaries on experience, expertise, market demand and other more objective factors that are not subject to claims they are linked to gender.