Did anyone else watch On Our Own, the 1994 TV series in which six real life siblings co-starred and were raised by their eldest brother (who posed, Madea-style, as their long-lost aunt Jelcinda and was apparently not one of the real-life siblings) after the death of their parents? I remember this series, not for the tearjerker plot, but for the super adorable Smollett siblings, including Jurnee (known most famously, to me, from the movie Eve’s Bayou, because Louisiana) and Jussie.

Well, despite Jussie’s several decade-long acting career, which currently involves a regular supporting role in Fox’s hit urban musical drama “Empire,” he has emerged into the spotlight within the past month. Chicago police superintendent alleged that Jussie paid two African brothers, who are allegedly friends of his (and one is allegedly his personal trainer and an actor who appeared on “Empire”), $3,500.00 to stage a violent attack on him. Jussie alleges that two masked, white men shouting racist and homophobic slurs beat him, hung a noose around his neck, and threw bleach (originally planned to be gasoline) on him. Jussie is in hot water now, battling a charge of disorderly conduct for filing a false police report (which carries a sentence of up to three years in prison), being ordered to surrender his passport, and unsurprisingly being suspended from “Empire.”

Reportedly, Jussie faked the hate crime because he was dissatisfied with his salary, which is currently unknown to the public, but was reported in 2016 as $20,000.00 per episode. At the same time, co-stars and leading actors, Taraji Henson and Terrence Howard, earned about $175,000.00 per episode.

Rigid vs. Non-Rigid Pay Scales

Though many employees might not earn Jussie’s per-episode salary annually, they, like Jussie seek pay raises. However, when pay is explicitly set, like in collective bargaining agreements and government pay scales, employees might be less likely to seek such increases. If pay scales are less rigid, the raise-seeker exceeds expectations, or is in a hard to fill position and work is abundant, the choice is likely easy. But is that often the case?

When an employee asks for a pay raise, immediate emotional reactions by the employer and/or HR professionals are discouraged and thoughtful consideration is key. Even if the pay scales are rigid, the first reaction should be to gather more information. A self-evaluation in conjunction with such a request could also shed some light on achievements of which the employer was unaware and even provide a reflection of the employee’s self-worth, which could be beneficial in making the decision. However, when pay scales and/or the pay raise process are not rigidly set, employees who ask for raises (which studies show are more likely men than women), regardless of their qualification for such raises, might have an advantage over those who don’t ask for raises. And this could lead to pay disparities between men and women in the same jobs. An internal or external pay audit could expose inconsistences; however, if disparities are found and no action is taken, litigation, as further explained below, could be forthcoming.

When Is Pay Disparity a Problem?

Back to Jussie, is there anything problematic regarding the likely pay disparity between he and Henson? The short answer is, probably not.

The Equal Pay Act (EPA), which is a part of the Fair Labor Standards Act, prohibits sex-based discriminatory rates of pay. Though women mostly file EPA claims, the law is equally applicable to men. Under the EPA, once a plaintiff proves by a preponderance of the evidence that her or his position and an opposite sex comparator’s position are substantially equal with respect to the level of skill, effort and responsibility required of each position, she or he will prevail unless the defendant proves one of the four defenses provided for by the Act. The four defenses provided by the EPA are: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.

In Jussie’s case, the pay disparity is likely not based on sex. Notably, Henson’s was nominated for an Oscar and has 66 acting credits to Jussie’s 21.

Some employers have argued that the fourth defense, a “factor other than sex,” includes salary history. The appellate courts are split on the issue, as some hold that salary history alone is not a legitimate factor (other than sex), and some hold that salary history alone is a legitimate factor (other than sex) if the employer has an acceptable business reason.

Regardless, several states have enacted salary history inquiry bans. Under California’s ban, with limited exceptions, employers are prohibited from relying upon a prospective employee’s salary history in determining whether to offer employment or what salary to offer or inquiring into a prospective employee’s salary history. Such bans are meant to remove any past consideration of sex as a factor in setting an employee’s salary and put applicants on an equal playing field.

The Bottom Line

In a perfect world, employees would always be content with what they are paid, and employers would be equally content with what they are paying; however, the opposite of either scenario is often the case. Indeed, thoughtful consideration of a request for a raise could prevent desperate measures, (allegedly) like Jussie’s, to garner an employer’s and the public’s sympathy as support for a raise.