You’ll Earn The Same As A Man ... In 2058

by Vijay Mani
March 26th, 2015

Equal Pay For Women            

            Last week the Institute for Women’s Policy Research released a report[1] about the employment and earning status of women in the U.S. The report noted that at the current rate of progress, from 1960 to today, the wage gap between men and women will finally close in ... 2058! That’s right, wage equality is a mere 43 years away. The pressing nature of the wage equality issue was also raised last month at the 87th Annual Academy Awards, when Patricia Arquette[2], who, after winning for Best Supporting Actress, said, “It’s our time to have wage equality once and for all and equal rights for women in the United States of America.” The speech was met with rousing applause and support not just from Hollywooders, but also from Hillary Clinton[3] and Nancy Pelosi[4], who echoed the actress’s words. 

            Not everyone shared Ms. Arquette’s sentiments about equal pay for women. Fox News contributor and actress Stacey Dash, responded[5] to the speech with “In 1963, Kennedy passed an equal pay law. It’s still in effect. I didn’t get the memo that I didn’t have any rights.” While Ms. Dash is correct that a law was passed in 1963, her comments ignore the significance of the current gender wage gap and the issue’s urgency.

            It is true that the Fair Labor Standards Act (FLSA)[6] was amended in 1963 to include the Equal Pay Act [7]. At that time, women were earning 59 cents[8] for every dollar earned by a man. Today, women earn about 77 cents[9] to the dollar compared to men. This shows that while there has been some progress since 1963, a substantial gender pay gap still exists. Closing this 23 cent gap has been a focus of the Obama Administration, and was again mentioned in the State of the Union[10] address a couple of months ago. In June 2013, the Administration’s National Equal Pay Task Force released its report[11] on the effects of the Equal Pay Act and the issues to confront in reducing the 23 cent gap. While the report acknowledges the broad array of issues contributing to wage inequality, it focuses on underlying employer bias and the need for pay data transparency. 

            Although employer bias may certainly contribute to the pay gap between genders, a more recent study from the American Bar Association Journal of Labor and Employment Law suggests that factors involved may be much more difficult to assess. In the study, The Pay Gap, the Glass Ceiling, and Pay Bias[12], it explains that the 23 cent gender gap is based on average income of all men and women, which may not be a proxy for employer bias as the sole contributor. The study states that the pay gap does not reveal gender disparities within specific professions/positions, or account for education, experience and work patterns[13]. The study does emphasize that the latter factors may involve deeper-seated biases and discrimination that forces women into decisions that lead to lower wages than men. For example, as noted in the study, women may be assigned more unpaid work than their male counterparts, and have to endure increased work interruptions, which may leave men in a more advantageous position for promotions[14].

            Another factor that may contribute to the gender pay gap involves salary negotiations. In a recent New Yorker article, Lean Out: The Dangers for Women who Negotiate[15], it points out that women are viewed more harshly for attempting to negotiate the terms of their employment, especially with respect to salary, than men. In some cases, the article notes that women have been penalized or had their job offer retracted.[16]  The article suggests that fewer women negotiate their salaries today, not because of reticence, but because they justifiably anticipate real attitudes, reactions and perceptions about their requests. 

            While there is no panacea to closing the existing pay gap, there have been efforts aimed at narrowing the wage disparity between men and women. The Equal Pay Act[17] does prohibit discrimination “on the basis of sex by paying wages to employees ... at a rate less than the rate at which [it] pays wages to employees of the opposite sex ...,” but the Equal Pay Act is limited to jobs that require “equal skill, effort, and responsibility, and which are performed under similar working conditions ... ” For broader protection, Title VII of the Civil Rights Act of 1964[18] provides that compensation discrimination need not necessarily involve the same or similar skills, effort, responsibility, or working conditions. Rather, it states that “[i]t shall be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees ... ”  

            Over the past several years, there has also been an effort to pass the Paycheck Fairness Act[19], designed to augment the Equal Pay Act by making wages more transparent to employees and by prohibiting employers from retaliating against employees who raise concerns about gender-based pay disparities. Attempts to pass the bill in Congress have failed[20], most recently in April 2014. The Equal Employment Opportunity Commission (EEOC)[21] has also made equal pay for women a primary focus for 2015, as it now is the agency to enforce the Equal Pay Act over the Department of Labor. In fact, the Budget Report of the Chairperson of the EEOC describes the Equal Pay Act as one of its fiscal year 2015 priorities.[22] And a review of pay disparity charges before the EEOC from 2008-2014 reveals an uptick[23] in the number of Equal Pay Act cases, resolutions, and monetary benefits over the past 3 years.        

            In sum, are there rights for women facing wage disparities? Yes. Are existing laws sufficient to close the pay gap between men and women? No. Is the solution to narrow the gender-based pay gap a simple one that does not involve a confluence of complex factors? No. Are efforts currently being made to address the pay gap? Yes. Is more dialogue, research and advocacy needed to address this issue adequately? Absolutely. Otherwise, it may be another 43 years before wage equality becomes a reality.          

 

[12] Gary Siniscalco et. al., The Pay Gap, the Glass Ceiling, and Pay Bias: Moving Forward Fifty Years After the Equal Pay Act, 29 ABA J. Lab. & Emp. L. 395 (2014). 

[13] 29 ABA J. Lab. & Emp. L. at 396.

[14] 29 ABA J. Lab. & Emp. L. at 397-98. 

Vijay Mani is an attorney in the firm’s Qui Tam litigation and Labor/Employment Law practice groups.  He is highly active in the firm’s False Claims Act practice, advocating on behalf of whistleblowers throughout the country in claims against government contractors that have committed fraud. He is passionate about helping whistleblower clients who have gone out on a limb to uncover massive fraud schemes perpetrated by their employers that would likely remain hidden forever if left unexposed.

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