Equal Pay Act Term Paper

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Equal Pay Act: Difficult but Essential to Enforce

According to the federal Bureau of Labor Statistics, in 2009, women made about 80% of what men of the same race performing the same jobs did. Historical data from the BLS (and this is consistent with other sources) demonstrate that things have improved little in terms of pay equity for women over the past half century or so (Bureau of Labor Statistics, http://data.bls.gov/cgi-bin/surveymost ). This is true despite the fact that in 1963, the Pay Equity Act became federal law in 1963. It is nearly impossible not to consider this law a failure in its effects given that so little has changed. (One might argue that things might have gotten worse for women absent this law, but this argument seems at least primarily specious.)

Congress enacted the law, which amended the Fair Labor Standards Act, for a number of reasons, including the fact that pay inequalities between the sexes reduces the overall effectiveness of the American labor pool; tends to "obstruct commerce" and the free flow of goods (and therefore places pay equity within the purview of Congress because of the power of the "commerce clause") because it causes unrest between different groups of workers; and because it fosters an unfair means of reducing reasonable competition. The act was also designed to raise the wages of female workers to a standard that allows them to maintain their efficiency as workers and their health as humans (United States Department of Labor, http://www.dol.gov/elaws/esa/flsa/screen7.asp).

In general the Fair Labor Standards Act -- which has been amended a number of times -- protects the rights of all workers in such areas as overtime pay as well as the rights of specific groups of workers, such as children and workers with disabilities. The Equal Pay Act is designed, in practical terms, to protect the rights of women in the workforce; however, it is written to protect the law of all workers against pay inequities based on gender. As such, while the practical effect of the act is to protect women as a specific class of workers, the intent of the law is to protect all workers. The Equal Pay Act is designed to be wide-ranging in its effects, as noted in an important test case of the act, Corning Glass Works v. Brennan, 417 U.S. 188 (1974) in which the decision determined that "The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve."

The Corning decision noted that Congress amended the Fair Labor Standards Act "out of concern for the weaker bargaining position of women," a weaker position that has ancient bases in a range of cultural and social practices, all of which demonstrate "an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman" (Corning Glass Works v. Brennan, 417 U.S. 188).

And yet, the wage gap remains. There are a number of different explanations why this should be. Many of them have a flavor of blaming the victim, arguing that women are paid less (and indeed many argue that women deserve to be paid less) because they tend to disrupt their careers to have children. This is in part true: Women do the majority of childcare in the United States. But this is simply an additional level of sexism: Women do the work of raising children and instead of being rewarded by society for this work they are further penalized by employers.

This is obviously a larger topic that I am addressing in this paper, but it is a parallel one. A workplace that was truly equitable would not only pay men and women the same for the same work but would also do other things to ensure that women -- while they remain the primary caretakers of small children -- have access to on-site childcare and flexible schedules. Of course men should have these benefits as well.

A study performed in 2007 by the U.S. Department of Labor addressed some of the complexities of the ways in which the application of the Equal Pay Act can be complicated, although I would argue that the following issues are less complications in many cases than excuses. The report note that "the raw wage gap continues to be used in misleading ways to advance public policy agendas without fully explaining the reasons behind the gap" (http://www.consad.com/content/reports/Gender%20Wage%20Gap%20Final%20Report.pdf

http://www.consad.com/content/reports/Gender Wage Gap Final Report.pdf

). The ways in which calls for equal pay are misleading, the report noted include the fact that men dominate the blue-collar jobs, which tend to pay better because they involve physical danger and also because they often allow workers a substantial amount of overtime. Alternatively, women tend to dominate the ranks of salaried white-collar administrators, a class of workers that does not receive overtime.

While this is strictly true, it does little to explain the range of pay inequalities, merely pushing the explanation back by one step. This explanation is a highly tautological one: It argues that women get paid less because they work in the professions that pay less because they are most open to women (Equal Employment Opportunity Commission, 1997). This is surely not the intent of the Congressional act.

A new law has helped to shore up -- to some extent -- the gaps in the law. Hillary Clinton, when still a senator from New York, introduced a bill in April 2005 that would allow only "bona fide" exemptions from pay equity between men and women. (In the House, Rosa de Lauro introduced an analogous bill.) President Barack Obama signed the "Paycheck Fairness Act" a year ago. The formal name of the bill is the "Lilly Ledbetter Act" after a plaintiff in a 2007 case against Goodyear. Much of the power of this law derives from the fact that each time an employer issues a check that is not gender-neutral in terms of pay scales, etc., this constitutes an additional violation of the law. The result is something like that of compounded interest, except in this case it is penalties that add up with dramatic speed [Paycheck Fairness Act, S.841 109th Cong. § 2(2) (2005)].

In that 2007 case, the U.S. Supreme Court handed down a ruling that made it much harder for women to sue to achieve fair pay: That opinion required women to file a suit within 180 days of when the discrimination occurs. Justice Ruth Bader Ginsbyrg, the only woman on the court at the time, wrote a strong dissent, in which she argued that this requirement "overlooks common characteristics of pay discrimination (http://www.aflcio.org/issues/jobseconomy/women/equalpay/

). The specific mechanism of pay discrimination that she was most concerned about -- as cited in her opinion -- was the fact that often women are not aware of pay inequities until long after they occur -- sometimes years may pass before a woman realizes that she has been underpaid for years. The new law undoes this highly problematic aspect of the Supreme Court decision. It is still too recent a law to determine the full consequences of this new law.

Employee Engagement Strategy

How one views the effect of the Equal Pay Act on relations in the workplace is not neutral: Rather these views reflect a person's overall understanding of how workplaces "should" work and be structured. The more politically conservative that one is, the less likely to find a use for government involvement in the workplace. The following is a representative example of a conservative viewpoint of the law and of gender-neutral laws in general:

Gender warriors are not wasting any time in 2009. Two pieces of falsely titled "gender equity" legislation, the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act, are set to be the first votes of the new House. Both bills are touted as protecting "equal pay" but, in reality, do nothing of the sort. The Equal Pay Act of 1963 already requires equal pay for equal work. So, whenever modern day politicians use the term, something else is usually afoot. The recent push for pay equity is no different (Kasic, 2009).

Having already touched on the ways in which the Equal Pay Act has failed to produce equal pay for women, we can see the problems in the argument above. Her hostility to the idea of gender pay equity -- a hostility that is common to conservatives, including conservative employers -- is further elaborated later in her essay:

The premise of the legislation is that American workplaces are systematically hostile to women and that the government must therefore intervene to provide more protection for women.

The Paycheck Fairness Act would take significant steps toward the idea of "comparable worth," aka government intervention (rather than market mechanisms such as supply and demand) in determining salary levels for different jobs to ensure "fairness." Under the bill, the Department of Labor would issue guidelines that compare the wages of different jobs…

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