Addressing the Gender Wage Gap in the United States: Shortcomings of Federal Legislation

Application and Limitations of the Equal Pay Act

Application

The text of the Equal Pay Act of 1963 addresses the issue of overt wage discrimination amongst the sexes. The reach of the principle is dependent on the extent of similarity (“equality”) between the jobs and the relevance of the four affirmative defenses. The courts have with time, fleshed out the EPA giving it fuller breadth and meaning. In Shultz v. Wheaton Glass Co. (1970), the Court of Appeals for the Third Circuit envisioned the Equal Pay Act as a broad charter of women's rights in the economic field. It thus ruled that jobs needed to be “substantially equal” but not “identical” to fall under the act. Thus, an employer cannot change the job titles of a worker to justify paying her or him less.

Focusing on the act as a remedy for discrimination, Justice Marshall argued it was an antidote to the nation’s entire wage structure, one of which was based on the outmoded view that a man’s role in society merited him a higher wage regardless if he performed the same duties a woman.25 In Corning Glass Works v. Brennan (1974), Corning Glass Works violated the EPA by paying higher base wages to male night shift inspectors than female night shift inspectors performing equal work. The Supreme Court thus ruled that employers cannot justify paying women lower wages with the justification that it was too close to the market rate.26 Unfortunately, while the "substantially equal" test preserves the efficacy of the statute, it does so by the use of a necessarily imprecise concept, which creates ambiguity and renders it difficult to predict the outcome of cases.

Limitations

Despite marginal success, federal legislation has done little to reduce the gender pay gap. For the first twenty years after the enactment of the first anti-discrimination statute (EPA), the pay gap remained unchanged.27 This is because the Equal Pay Act of 1963 addresses equal pay for equal work. In other words, it fails to target cases of differentiations in the rates of pay among different job classifications, proving inadequate due to the prevalence of job segregation between the sexes. The inability of the EPA to compare wage differentials between workers doing dissimilar – but nonetheless comparable – work is its biggest drawback.28

The courts have interestingly taken it upon themselves to address more subtle forms of discrimination in which refinements of job descriptions are used to mask sex discrimination. They have done so by expanding the Equal Pay Act of 1963 (EPA) to jobs in distinct classifications where the work performed by men and women are “substantially equal.” 29 Four factors are used to determine whether two jobs are equal for purposes of comparison under the Act: skill, effort, responsibility, and similarity of working conditions. In an Equal Pay Act case, the employee must demonstrate a prima facie sex-based wage differential.30 The burden then falls on the employer to prove that the pay differential is based on one of Act’s four exceptions.31

While the Equal Pay Act requires equal skill, effort, responsibility, and similar working conditions, Title VII of the Civil Rights Act of 1964, prohibits all discrimination in compensation based on sex. As a result, plaintiffs have attempted to use Title VII to establish a theory of comparable worth.32 This theory would protect female employees not covered by the Equal Pay Act because their jobs are not substantially equal to jobs done by men, yet they remain subjected to sex-based wage discrimination.

Furthermore, even the most recent federal legislation on this matter, the Lilly Ledbetter Act of 2009, inadequately addresses the occupational segregation issue rooted at the core of the gender wage gap. The act overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company (2006) in which an employer could not be sued for pay discrimination under Title VII of the Civil Rights Act of 1964 if the discriminatory practice occurred more than 180 days before the employee initiated his or her claim.33 While the act restored claims of many employees, it does aid women who do not know they are being discriminated against or are in different occupations than men and cannot bring forth the issue as a federal illegality.

Comparable Worth Debate

A Corrective Policy

The debate centered on the strategic implementation of comparable worth is one that concerns the feasibility of the application of such a standard and a question regarding social values inherent in the wage hierarchy. For example, proponents of the comparable worth theory assert that the labor-intensive nature of caring for people should not be less valuable than the work required to build infrastructure such as buildings and roads. In theory, the idea of comparable worth is a noble start as a strategy, which attempts to correct for past societal injustices. While issues of seniority, maternity leave, and childcare may account for the significant wage gap between men and women, inherent discrimination also exists and perpetuates the preexisting disparity. Given the history of women in the labor force in the United States who have repeatedly been the subject of depressed wages, a remedy is necessary to equally assess their value-added in the workforce.

Many women in the United States are employed in jobs that are paid relatively lower than those held by men. Yet, early studies indicate that women have been paid less in female-dominated occupations not because the jobs have been intrinsically worth less or relatively less impactful, but rather because they had been dominated by men. Thus, many scholars have argued that women’s work is widely devalued due to the fact it is work performed by women. Proponents of comparable worth thus deem the gender wage gap as predominantly attributed to discrimination, arguing employers illicit prejudice against women resulting in subsequent reduction in the pay scale. Present legislation such as the Equal Pay Act of 1963 and Title VII of the Civil Rights of 1964 are inadequate in terms of such protection because of the tendency of women to work in different occupations than men. Comparable worth can thus address the persistent discrimination against women in occupations they dominate.

Furthermore, comparable worth unmasks existing discrimination that has with time been embedded into the economy. A major legal question has concerned the definition of discrimination in the context of employment practices. In Christensen v. State of Iowa (1976), the University of Northern Iowa was accused of paying its secretaries-mainly women-less than its physical plant employees, consisting of primarily men. The university’s internal job evaluation awarded both positions the same labor grades, translating them into equal worth. The Eighth Circuit Court, however, ruled that such differences in pay were not indicative of discrimination because they reflected prevailing wage rates in the labor market.34 Thus, setting a standard of how to interpret and prove sex discrimination in employer set wages needs to be reevaluated.

Academic scholars and policymakers, however, acknowledge the shortcomings of the comparable worth doctrine. Economically, the comparable worth theory disrupts the marketplace by limiting the free choice of wage bargains previously held by individuals and transferring it to government experts.35Others argue that it is the gender composition of the labor force that must continue to evolve, and that the extent public policies ought to play in correcting market failures and promoting efficiency should be factored in prior to disrupting the fairness in the market.36 Further, critics of comparable worth assert that the illegality of paying women less than men doing substantially equal work is a sweeping protection in and of itself.

Yet, this supposed protection falls short. A woman’s labor that is not equal, but comparable, to a man’s is not incorporated under the substantially equally standard. Moreover, using market wages is valid; however, proponents of comparable worth note that even if employers set wages with nondiscriminatory intent, market wages will reflect prior discriminatory evaluations of other employers and will thus be unfair.

While comparable worth does not tackle all forms of inequality in employment, it seeks to address gender inequity in terms of wages, which compromises a large portion of the gender inequality in the United States. Issues surrounding comparable worth have and will continue to set the stage for attacks on other forms of inequity. Its insistence that jobs be evaluated implies the existence of a hierarchy and its rejection of the market, indicating women have had an inherent disadvantage in terms of compensation since entry into the labor force. This has provoked questions of what measures and thresholds to employ when valuing a job in the market.

Yet, when translated into practice, applying the theory of comparable worth poses several challenges. Among such issues include: a) the entity that should enforce implementation (i.e. public versus private employers), b) the method of achieving this outcome, namely the most effective means to restructure wages, and c) the strategy to reduce the high societal uproar that will ensue. In light of the aforementioned barriers, the comparable worth doctrine should not be dismissed. Rather, additional insight into developing how employers can utilize this tactic to prevent future sex-based pay discrimination will be crucial to its resilience.

Conclusion

Although the gender earnings gap has been reduced over the past five decades, it inevitably persists. Despite federal protection under the EPA and Title VII, women as a group earn substantially less in comparison to men primarily because they tend to be concentrated in lower paying occupations, a concept unaddressed by current federal legislation. Comparable worth is therefore a short-term solution, and in the meantime, federal legislation serving to address the compensation differential must be reevaluated.

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References

Constitutional Limitations on Closing the Gender Gap in Employment. (Spring 2013). FIU Law Review.Vol. 8, Issue 2.

Cooper, E. & Barrett. G. (1984). Equal Pay and Gender: Implications of Court Cases for Personnel Practices. Academy of Management Review 9, no. 1: 84-94.

Explanations of the Job Segregation and the Sex Gap in Pay. (June 6-7 1984). Comparable Worth: Issue for the 80’s: A Consultation of the U.S. Commission on Civil Rights.

Female-to-Male Earnings Ratio and Median Earnings of Full-Time, Year-Round Workers 15 Years and Older by Sex: 1960 to 2013. (2013). Retrieved July 21, 2015.

Figart, D., &Lapidus J. (2015). Will Comparable Worth Reduce Race-based Discrimination? Retrieved May 5, 2015.

Glynn, S. (2014, March). Explaining the Gender Wage Gap. Retrieved July 21, 2015.

Highlights of Women’s Earnings in 2013. (2014, December). BLS Reports. Retrieved July 21, 2015.

Interpreting the Equal Pay Act: Corning Glass Work v. Brennan. Tulsa Law Journal.Vol. 10, Issue 4 (1975).

Jewell, N. (2002). Georgetown Journal of Gender and the Law. Vol. 4, Issue 1.

Johnson, J. Equal Pay Act of 1963: A Practical Analysis.” Drake L. Rev. 570 (1974-75).

Kaplan, G. Pay Equity or Pay Up: The Inevitable Evolution of Comparable Worth into Employer Liability under Title VII. Loy. L.A. L. Rev. 305 (1987), Retrieved from http://digitalcommons.lmu.edu/llr/vol21/iss1/7.

Kessler, G. (2015, April). The ‘Equal Pay Day’ Factoid That Women Make 78 Cents for Every Dollar Earned by Men. Retrieved July 21, 2015.

Kolesnikova, N., & Yang L. (2011, October). Gender Wage Gap May be Much Smaller Than Most Think.” Paychecks. Retrieved July 21, 2015.

Lindgren, R., Taub, N., Wolfson, B., & Palumbo, C. (1988). The Law of Sex Discrimination. Fourth ed. Boston, Massachusetts: Wadsworth Cengage Learning.

Lisping, J. (1981). Equal Pay for Comparable Worth. Golden Gate University Law Review, Vol. 11, Issue 3.

Lopez, M., & Gonzalez-Barrera, A. (2014, March). Women’s College Enrollment Gains Leave Men behind. Facttank. Retrieved May 2, 2015, from http://www.pewresearch.org/fact-tank/2014/03/06/womens-college-enrollment-gains- leave-men-behind/.

O'Neill, J. Comparable Worth. The Concise Encyclopedia of Economics. Retrieved May 3, 2015 from http://www.econlib.org/library/Enc1/ComparableWorth.html.

Oster, S (1993, November). Is There a Policy Problem: The Gender Wage Gap. Georgetown Law Journal. Vol. 82, Issue 1.

Paul, E (1989). Equity and Gender the Comparable Worth Debate. New Brunswick, NJ: Transaction Publishers.

Polachek, S. (1975). Discontinuous Labor Force Participation and Its Effects on Women's Market Earnings. Pp. 90-122 in Cynthia Lloyd, ed., Sex, Discrimination, and the Division of Labor, New York: Columbia University Press.

Ross, A., & McDermott, F. (1974, November). Boston College Industrial and Commercial Law Review, Vol. 16, Issue 1, pp. 1-74.

Sandell, S., & Shapiro, D. (1978). An Exchange: The Theory of Human Capital and the Earnings of Women: A Re-Examination of the Evidence. Journal of Human Resources, 13, 1: 103-17.

Sullivan, C. (1978, January). The Equal Act of 1963: Making and Breaking a Prima Feel Case 31 Ark. L. Rev. 545. Retrieved SSRN: http://ssrn.com/abstract=237396.

Siniscalco, G. (2010, March). Developments in Equal Pay Law: The Lilly Ledbetter Act and Beyond. Retrieved August 12, 2015.

The Gender Wage Gap Is A Chasm For Women Of Color, In One Chart. (2014, September). ThinkProgress RSS. Retrieved May 5, 2015.

Walfoort, M. Narrowing the Gap: The Progress toward Pay Equity. Florida State University Law Review, Vol. 14, Issue 3.

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Endnotes

1.) J. Ralph Lindgren, Nadine Taub, Beth A. Wolfson, and Carla M. Palumbo, The Law of Sex Discrimination, Fourth ed. Boston, Massachusetts: Wadsworth Cengage Learning, 165.

2.) Ibid, 165.

3.) Mark H. Lopez and Ana Gonzalez-Barrera, “Women’s College Enrollment Gains Leave Men behind,” Facttank. March 6, 2014, Accessed May 2, 2015, http://www.pewresearch.org/fact-tank/2014/03/06/womens-college-enrollment-gains-leave-men-behind/.

4.) Female-to-Male Earnings Ratio and Median Earnings of Full-Time, Year-Round Workers 15 Years and Older by Sex: 1960 to 2013.” 2013. Accessed July 21, 2015.

5.) “Highlights of Women’s Earnings in 2013.” BLS Reports. December 1, 2014. Accessed July 21, 2015.

6.) Glenn Kessler. “The ‘Equal Pay Day’ Factoid That Women Make 78 Cents for Every Dollar Earned by Men.” April 2, 2015. Accessed July 21, 2015, 6.

7.) Solomon Polachek, 1975, "Discontinuous Labor Force Participation and Its Effects on Women's Market Earnings," Pp. 90-122 in Cynthia Lloyd, ed., Sex, Discrimination, and the Division of Labor, New York: Columbia University Press.

8.) Steven H. Sandell and David Shapiro, 1978, "A Re-Examination of the Evidence," Journal of Human Resources, 13, 1: 103-17.

9.) “Explanations of the Job Segregation and the Sex Gap in Pay: Comparable Worth: Issue for the 80’s: A Consultation of the U.S. Commission on Civil Rights, June 6-7 1984, 60.

10.) Natalia Kolesnikova and Yang Liu. “Gender Wage Gap May be Much Smaller Than Most Think.” Paychecks. October 1, 2011. Accessed July 21, 2015, 14.

11.) Sarah Glynn. “Explaining the Gender Wage Gap.” March 19, 2014. Accessed July 21, 2015.

12.) Jolie Lipsig, “Equal Pay for Comparable Worth,” Golden Gate University Law Review, Vol. 11, Issue 3 (Summer 1981), 803.

13.) "The Gender Wage Gap Is A Chasm For Women Of Color, In One Chart," ThinkProgress RSS, September 18, 2014, Accessed May 5, 2015.

14.) Deborah Figart and June Lapidus, "Will Comparable Worth Reduce Race-based Discrimination?" Accessed May 5, 2015.

15.) J. Ralph Lindgren, Nadine Taub, Beth A. Wolfson, and Carla M. Palumbo, The Law of Sex Discrimination, Fourth ed. Boston, Massachusetts: Wadsworth Cengage Learning, 168.

16.) Gail C. Kaplan, Pay Equity or Pay Up: The Inevitable Evolution of Comparable Worth into Employer Liability under Title VII, 21 Loy. L.A. L. Rev. 305 (1987), http://digitalcommons.lmu.edu/llr/vol21/iss1/7.

17.) Neonu Jewell, Georgetown Journal of Gender and the Law, Vol. 4, Issue 1 (Fall 2002), 635.

18.) J. Ralph Lindgren, Nadine Taub, Beth A. Wolfson, and Carla M. Palumbo, The Law of Sex Discrimination, Fourth ed. Boston, Massachusetts: Wadsworth Cengage Learning, 78.

19.) Ibid, 79.

20.) Albert H. Ross and Frank V. Jr. McDermott, Boston College Industrial and Commercial Law Review, Vol. 16, Issue 1 (November 1974), pp. 1-74, 19.

21.) J. Ralph Lindgren, Nadine Taub, Beth A. Wolfson, and Carla M. Palumbo, The Law of Sex Discrimination, Fourth ed. Boston, Massachusetts: Wadsworth Cengage Learning, 171.

22.) Ibid, 171.

23.) Elizabeth A. Cooper, and Gerald V. Barrett, "Equal Pay and Gender: Implications of Court Cases for Personnel Practices," Academy of Management Review 9, no. 1 (1984): 84-94.

24.) Marth Walfoort, “Narrowing the Gap: The Progress toward Pay Equity, Florida State University Law Review, Vol. 14, Issue 3.

25.) Charles A. Sullivan, The Equal Act of 1963: Making and Breaking a Prima Feel Case (January 2, 1978). Ark. L. Rev. 545, (1978). Available at SSRN: http://ssrn.com/abstract=237396, 562.

26.) Interpreting the Equal Pay Act: Corning Glass Work v. Brennan, Tulsa Law Journal, Vol. 10, Issue 4 (1975), 682.

27.) Constitutional Limitations on Closing the Gender Gap in Employment, FIU Law Review, Vol. 8, Issue 2 (Spring 2013), 407.

28.) Jolie Lipsig, “Equal Pay for Comparable Worth,”Golden Gate University Law Review, Vol. 11, Issue 3 (Summer 1981), 812.

29.) J. Ralph Lindgren, Nadine Taub, Beth A. Wolfson, and Carla M. Palumbo, The Law of Sex Discrimination, Fourth ed. Boston, Massachusetts: Wadsworth Cengage Learning, 168.

30.) Janet A. Johnson, “Equal Pay Act of 1963: A Practical Analysis,” Drake L. Rev. 570 (1974-75), 591.

31.) Jolie Lipsig, “Equal Pay for Comparable Worth,” Golden Gate University Law Review, Vol. 11, Issue 3 (Summer 1981), 810.

32.) Ibid, 815.

33.) Gary, Siniscalco, “Developments in Equal Pay Law: The Lilly Ledbetter Act and Beyond,” March 1, 2010. Accessed August 12, 2015.

34.) June E. O'Neill, "Comparable Worth," The Concise Encyclopedia of Economics, Accessed May 3, 2015. http://www.econlib.org/library/Enc1/ComparableWorth.html.

35.) Ellen Frankel Paul, Equity and Gender the Comparable worth Debate, New Brunswick, NJ: Transaction, 1989.

36.) Sharon M. Oster, “Is There a Policy Problem: The Gender Wage Gap,” Georgetown Law Journal, Vol. 82, Issue 1 (November 1993), 118-119.