Title VII's impact on women's workplace equality and pay

WOMEN'S RIGHTS: EQUALITY IN THE WORKFORCE, EQUAL PAY

Women's Rights: Equality in the Workplace, Equal Pay

Legislative background. The word "sex" is always an attention-getter, and when used in legislation, it can be polarizing. Public Law 82-352 (78 Stat. 241) was passed by Congress in 1964 as a civil rights statute. The Law made it a crime to discriminate in all aspects of employment on the basis of race and sex. Representative Howard W. Smith (D-VA) added the word "sex" at the eleventh hour (O'Neill, 2011), reported to keep the bill from being passed. As a conservative Southerner, Smith was seen as an opponent of federal civil rights legislation. But Smith defended his action, explaining that he had amended the bill because of his work with the National Women's Party and his efforts to support Alice Paul. The effort to retain the word "sex" in the bill was led by Martha W. Griffiths (D-MI). When the bill was passed, Section 703(a) explicitly stated that the following actions by an employer are unlawful: "…fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges or employment, because of such individual's race, color, religion, sex, or national origin." However, sex could be a consideration of employment when it was a "bona fide occupational qualification for the job. The law was to be implemented by the Equal Employment Opportunity Commission (EEOC) which was established by Title VII of the Law.

The role of the EEOC expanded over the decades and subsequent legislation has resulted in EEOC oversight and enforcement of discrimination laws that include race, color, religion, sex, national origin, disability, or age in all terms and conditions of employment. Although not inclusive, discrimination is prohibited in recruitment, hiring, promotion, termination, wage setting, apprenticeship, testing, training and other germane conditions and terms of employment. Further, gender discrimination in compensation for "substantially similar work under similar conditions" was prohibited by the Equal Pay Act of 1963.

Done deal.

April 12, 2011 was Equal Pay Day. Now, some 58 years after the passage of the Equal Pay Act of 1963, women are paid 77 cents on the dollar compared to men. It is important to note that, if the average lag for women's compensation is 70 to 80%, it is even greater for women of color. In 1970, when women marched on National Equal Pay Day was held, women were paid 59 cents on the dollar compared to men (Thomas, 2011). That's 18 cents over 41 years.

National Organization for Women (NOW). The mission of NOW, as described on their Website is as follows:

Since its founding in 1966, NOW's goal has been to take action to bring about equality for all women. NOW works to eliminate discrimination and harassment in the workplace, schools, the justice system, and all other sectors of society; secure abortion, birth control and reproductive rights for all women; end all forms of violence against women; eradicate racism, sexism and homophobia; and promote equality and justice in our society (NOW, 2011).

NOW membership runs to 500,000 contributing members and 550 chapters in all 50 states and the District of Columbia (NOW, 2011). The primary policy issues import to NOW are: A Constitutional equality amendment, abortion and reproductive rights, ending sex discrimination, economic justice, promoting diversity and ending racism, stopping violence against women, and lesbian rights. NOW is the most influential of the feminist activists' organizations. For instance, in 2004, NOW organized "the largest mass action of any kind in U.S. history" when it brought a record 1.15 million people to Washington, D.C. To participate in the March for Women's Lives to advocate for reproductive health options for women (NOW, 2011).

Families and Work Institute. The Families and Work Institute (FWI) is a nonprofit research center that focuses on "living in today's changing workplace, changing family, and changing community" (Families and Work, 2010). The Institute was founded by a professor of education; so, though its research reads as fundamentally centrist, the soul of the organization is decidedly ideological. The mission of Institute, which was founded in 1989, as described on their Website is as follows:

Families and Work Institute (FWI) is a nonprofit, nonpartisan research organization that studies the changing workforce, family and community. As a preeminent think-tank, FWI is known for being ahead of the curve, identifying emerging issues, and then conducting rigorous research that often challenges common wisdom, provides insight and knowledge. As an action-tank, we conduct numerous studies that put our research into action and then evaluate the results. Our purpose is to create research to live by (Families and Work, 2010).

Research conducted by the Families and Work Institute focuses on the workforce / workplace, youth, and early childhood (Families and Work, 2010). Their influence is strongly felt, right up to the White House -- seminal research studies on various workplace issues deeply informed the White House forum on Workplace Flexibility held March 31, 2010. The well-circulated, oft quoted research report -- Work-Life Balance and The Economics of Workplace Flexibility Report -- which was released in conjunction with the Forum by the Council of Economic Advisers extensively cited the Institute's research. The Institute may be best known for the National Study of the Changing Workforce (1992, 1997, 2002, 2008 and 2012) which is the largest and most comprehensive ongoing study of the U.S. workforce, and the National Study of Employers (1998, 2005, 2008, 2011), one of the most comprehensive ongoing studies of how employers are responding to the changing workforce (Families and Work, 2010).

The Center for WorkLife Law. The Center for WorkLife Law (WLL) is a nonprofit research and advocacy group "devoted to women's advancement and to improving work / life balance for everyone -- men as well as women" (WorkLife Law, 2011). The Center utilizes cutting-edge academic research as a catalyst to organizational and social change with a two- to five-year horizon. Their focus is on measurable, concrete change that reflects a "six stakeholder" orientation; this 360 degree approach enfolds public policymakers, employees, employers, unions, plaintiff's lawyers, and management-side lawyers. The areas of law that receive the most attention from the Center are diversity issues and work-family conflicts that result in employment discrimination, gender compensation issues, bias in higher education and STEM (science, math, and engineering). The work of the Center on employer best practices, such as performance evaluations flexible work arrangements, are recognized and widely utilized by the legal profession. The University of California, Hastings College of Law hosts the Center, which is funded through private donations.

The Independent Women's Forum (IWF). A conservative, nonprofit, nonpartisan educational and research organization, The Independent Women's Forum focuses on women's domestic and foreign issues and policy concerns. The group is highly ideological and has a membership of about 20,340 members. The mission of IWF as described on their Website is as follows:

The Independent Women's Forum is dedicated to building support for free markets, limited government, and individual responsibility. IWF…seeks to combat the too-common presumption that women want and benefit from big government, and build awareness of the ways that women are better served by greater economic freedom. By aggressively seeking earned media, providing easy-to-read, timely publications and commentary, and reaching out to the public, we seek to cultivate support for these important principles and encourage women to join us in working to return the country to limited, Constitutional government (Independent Women's Forum, 2010).

The theoretical foundation that undergirds IWF is "first wave" feminism, which has as its goals political and educational equality for women (Independent Women's Forum, 2010). This version of feminism embraced by IWF is referred to as equality feminism as opposed to the more liberal "third wave" feminism termed gender feminism. The IWF declares 26 different issues of interest on their Website. Interestingly, if not surprisingly, IWF regularly broadcasts on Fox News, a news station owned by the Koch brothers, multi-billionaire conservative Republicans owners of a chemical and petroleum plants.

The Policy Problem: Defined and Structured

NOW

The gender pay gap is framed as a civil rights issue by NOW. The roots of civil rights issues, NOW would suggest, are deliberate power struggles -- typically with strong economic undertones -- and in the case of the gender pay gap, includes discrimination based on color, race, ethnicity, and age, all of which may be an overlay of gender. The gender pay gap is a substantive issue for NOW as it clearly characterizes the battle that must continue to be fought for all women. Women continue to be discriminated against in tangible and intangible ways, and feminists must continue to push their agendas with relentless activism.

FWI

The Families and Workplace Institute defines the gender pay gap as social change issue. The Institute would depict the gender pay gap as a phenomenon born of tradition, and maintained by a lack of political will to test non-traditional solutions to the problem. FWI understands the pervasiveness of the gender pay gap problem and takes the position that education coupled with research that continually measures and establishes benchmarks will help to condition the environment for the changes it believes must be made. FWI has positioned itself so as to assist policy makers in high places.

WLL

The Center for WorkLife Law identifies the gender pay gap as a discrimination law issue. The Center views the gender pay gap as an undesirable default behavior that is permitted in the absence of modernized statutes and enforced best practices in employment law and employee relations. When it is not focused on changing the laws, the Center takes a change agent stance to working with all relevant stakeholders to enjoin a cooperative force for altering discriminatory and inequitable workplace practices, and cementing preferred policies in newly conditioned environments.

IWF

The Independent Women's Forum views the gender gap as socially / politically constructed myth. The IWF does not believe that the gender gap is an authentic problem, and is determined to cast unformed doubts about the veracity of the research and statistics provided by think tanks and research centers, and perhaps most importantly, their anti-organization, NOW. The gender pay gap is a touchstone for IWF that enables them to garner media attention and serves as a platform for introducing the many interlaced problems that IWF believes can be cleared up by a reductionist stance toward information. For instance, IWF dismisses the statement that women earn just ae of what men do for the same jobs, saying that the jobs are not really the same, that women work fewer hours and leave work early to care for their children, and make many other too-numerous-to-mention-here choices that give them greater flexibility but less pay. IWF is not interested in deep discussion, preferring to make unfounded and distorted proclamations in the manner of disciples. The women who are drawn to IWF are likely to be the same women (Campbell, 2007) who echo Sarah Palin but might also chafe under a woman President, considering it unnatural or polarizing.

Alternative Solutions to the Policy Problem

The United States continues to be one of only seven countries in the world that has not ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) -- a landmark international agreement that affirms principles of fundamental human rights and equality for women around the world (National Women's Law Center, 2011).

The United States has not endorsed this international agreement, although it seems to be a good fit to our domestic labor laws and antidiscrimination laws, which have been on the books for decades. If America is not getting on the international bandwagon, what is she doing at home (perchance, in the kitchen)?

NOW

1. Mass action. NOW organizes marches and protests (non-violent civil disobedience) around issues that have wide national appeal and are able to attract sufficient numbers to powerfully engage the media.

2. Direct action. NOW Members are alerted to the need for individual direct action, such as contacting their representatives or supporting a candidate for office.

3. Lobbying / Field organizing.. From the national office, the Action Center in Washington, D.C, NOW lobbies, implements policy, initiates field organizing, and co-ordinates national actions.

FWI

1. Ongoing reports. One niche that FWI fills is producing large ongoing reports in which the unit of analysis is national employers and nation-wide workplaces.

2. Speakers' bureau. The Institute created the FWI Speaks program (Family and Workplace Institute, 2010) to enable groups, organizations, and governmental bodies to engage speakers for customized presentations that detail and discuss the Institute's research findings.

3. Model program. Through a grant from the Ford Foundation, the Institute has established a model program for employers and employees called the Supporting Work Project. The project goals are to employ groundbreaking strategies to partner business and community leaders so that employers can help educate low-wage earners about publicly-funded work supports and increase their access to these benefits.

WLL

1. Media coverage. The Center works to provide the media with easy access to factual information LLC tackled journalists' viewpoints on their portrayal of issues related to motherhood in the workplace. In 2006, WLL produced a report titled Opt Out or Pushed Out?, that provided the sort of facts and data that warms a journalist's heart -- and results in less biased reporting.

2. Employer best practices. LLC develops best-practice policies on performance evaluation and flexible work arrangements that deeply influence the legal profession.

3. Social science. The Center engages in social science research that serves as both resource and reference to employees, employers, and attorneys. LLC documented that motherhood triggers the most robust forms of gender bias in the nation's workplaces today. In the initiative Diversity Beyond the Body Count, LCC provided employers with specific guidance on how to reverse the effects of implicit bias in the workplace by changing their approaches to work allocation, performance evaluation, and compensation.

IWF

1. Online news and commentary. IWF produces an ongoing stream of blog-like commentary and short news blurbs. All key IWF staff appears to contribute to Website content.

2. Policy papers. The range of topics in IWF's policy papers is staggering. They profess expertise on an extensive range of policy issues, but the papers are predominantly briefs, and shallow briefs, at that.

3. Research. From time-to-time, IWF conducts a research study, which appears to be of the secondary research type, examining and rearranging extant data to serve their purposes. The research findings are made available on the Website and also broadcast on radio and television.

Conclusion

The alternatives presented within the four institutes and organizations in this paper are less policy alternatives than they are strategies for bringing about new legislation or implementing existing laws that are pervasively ignored. However, taken as a whole, the strategies across the four institutes and organizations do represent alternative approaches to policy change. NOW approaches policy changes as a legislative marathon; keep running until you cross the finish line and snap the ribbon. There is only one race, and it is to pass legislation with clout, and never, ever let anyone take the trophy cup away. FWI's approach to policy change is at once top-down and bottom-up. FWI positions itself like a perfect political agent, hob-knobbing with those who have the funding and the political know-how, while kissing the babies of the constituents and making nice at "talks." WLL is the new face of the law, and appreciates that implementation may happen best when employers have their backs against the wall, with no place to run. WLL may be sitting at the round table with stakeholders from every possible quadrant, but the law is still the law. It is a very effective way to bring about policy change. IWF is as convincing as the tabloids sold at the check-out stand -- and the same people are buying.

Behind the Pay Gap, a report released in 2007 by the American Association of University Women supports the approaches that FWI and LLC are taking to change the public policies to impact the gender pay gap.

To address pay inequity, action must take place simultaneously, among employees, employers, and the public (Murphy, 2005). Strong national legal remedies may be warranted (National Women's Law Center, 2006). To make pay equity a reality, pressure must come from every level (AAUW, 2007).