What You Don’t Know You Don’t Know About Equal Pay

There’s been a lot of talk about equal pay lately, and it’s making me a little nuts, because most of what’s been said in public has been said by people who a) are totally oblivious to the history of equal pay legislation, and b) should really know better. So I – a regular person with no legal training – spent 30 minutes poking around online and am now more informed on the subject than most politicians and news/media personalities. Join me here in InformedVille, won’t you?

Last week, the trusty House of Representatives used the filibuster to block a vote on the Paycheck Fairness Act. A lot of people have strong feelings about that. Very few people bothered to learn what the Paycheck Fairness Act would actually have done. Most people think the Paycheck Fairness Act would have federally mandated equal pay for equal work, regardless of gender. Nope! And do you know why? Because a law mandating equal pay for equal work regardless of gender was passed in 1963. It’s called the Equal Pay Act. Catchy, innit?

Title VII of the Civil Rights Act passed a year later, expanding discrimination protection from wages and women to “compensation, terms, conditions, or privileges of employment” and “race, color, religion, sex, or national origin.” (Note the absence of age and sexual orientation.) The differences between the EPA and Title VII are nuanced, but worth exploring. A lot of progress was made on employment discrimination in the mid-late 60’s, including the establishment of the Equal Employment Opportunity Commission (EEOC) in 1965.

But the Equal Pay Act had problems. Employers tried to make jobs ‘different’ by changing the titles… Until the Supreme Court said they had to stop in 1970. They also tried to argue that it wasn’t their fault women were willing to work for less than men and therefore established a lower market rate. SCOTUS told them that wasn’t ok in 1974. And other problems persisted; The Act allowed for wage differentials where there was a seniority system, a merit system, pay based on production volume, or any differential other than gender. This essentially gave employers a textbook for how to argue their way out of a claim, and did nothing to address the fact that it was incumbent on employees to discover that they were being discriminated against; a tall order given that employers often prohibit employees from asking about or discussing compensation.

Fast forward to 2009 and the Lily Ledbetter Fair Pay Act. Ledbetter worked for Goodyear for almost 20 years. Goodyear is one of those companies that prohibits employees from discussing their compensation. One day, Ledbetter received an anonymous note containing the salaries of three men who made more than she did for the same job. She filed an EEOC complaint. But the statute of limitations on such claims was 180 days from the first incident, which means she was about 19 years too late. So she sued, landed in the Supreme Court, and lost in a 5-4 ruling siding with Goodyear. In her dissenting opinion, Justice Ginsberg called upon Congress to change the law to allow women to file a complaint within 180 days of the last incident, meaning the last paycheck containing discriminatory wages – giving them a fighting chance to learn the discrimination was happening. Obama had just gotten elected thanks in part to female voters, so Congress acted quickly (imagine!), and the Lilly Ledbetter Fair Pay Act of 2009 was the first piece of legislation he signed.

Finally we arrive back at the Paycheck Fairness Act. It would have done a few simple things to remedy some of the remaining problems with the Equal Pay Act:

  1. Prohibit retaliation against employees who ask about or discuss compensation,
  2. Empower the Department of Labor/EEOC to collect wage-related data (no, they’re not already doing that),
  3. Require employers to demonstrate that wage differentials are based on something other than gender,
  4. Stipulate reasonable criteria for comparing ‘equal’ jobs, and
  5. Strengthen penalties for violations.

That’s what the House refused to allow a vote on. Not government mandated equal pay – because government mandated equal pay happened 50 years ago.

So there you have it. You now know more than almost anyone you will hear talking about the issue of equal pay, and certainly more than the assholes who refuse to vote on it. Sorry if you find it as infuriating as I do. But in my better moments, it makes me feel informed, and proud to be informed, and that’s worth spreading. So SPREAD IT. And I mean that however you want me to mean it.

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