While federal laws have long required men and women to receive equal pay for performing the same work, those laws have done little to narrow the wage gap between men and women. Statistics compiled by the American Association of University Women reveal that the median earnings of women who work full time are 80% of the median earnings of men who work full time.
The gap is larger for Latina women, whose median earnings are 53% of earnings by white males. The median income of African American women is 61% of the median income of white males.
The gender pay gap varies from state to state. The largest gap (69%) is in Louisiana while the smallest (89%) is in California. Florida is better than average, with a gender pay gap of 87%.
Why have federal laws been ineffective in eliminating the gender pay gap? Unfortunately, the laws do not tackle some of the systemic causes of unequal earnings. Proposed laws that could narrow the gap are unlikely to be enacted this year, but future legislatures might make a stronger push for equal pay.
The Equal Pay Act
Congress enacted two civil rights laws in the 1960s that were designed to eliminate discriminatory pay. Title VII of the Civil Rights Act of 1964 prohibited sex discrimination in employment. Paying a female employee less than a male employee who performs the same work is discriminatory unless the disparate pay is justified by a factor other than gender (such as seniority or performance).
The Equal Pay Act of 1963 specifically targeted the common practice of paying women less than men for the same work. Congress noted that employers often viewed men as breadwinners who needed to earn more than women to support a family. That stereotype promoted pay practices that regarded women as less deserving of fair pay than men.
The Equal Pay Act expressly prohibits employers from paying employees of one sex less than employees of the opposite sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” The law makes exceptions for pay differences that are based on seniority, merit, productivity, or other factors that are unrelated to gender.
Unfortunately, courts have tended to construe Title VII and the Equal Pay Act narrowly. Judges regard Title VII as requiring employers to pay two employees equally when they hold identical jobs unless the difference in pay is unrelated to gender. Assigning women to lower-paid jobs that are just as difficult but with different duties than higher-paid jobs reserved for men will often satisfy courts that no discrimination occurred.
Although the Equal Pay Act uses the term “equal work” and refers to jobs that require “equal skill, effort, and responsibility,” some business-friendly courts have interpreted the law in a way that prohibits gender pay disparities only if two jobs are nearly identical. As one law professor wrote, the Equal Pay Act “prohibits only the most obvious form of gender-based wage discrimination, guaranteeing that men and women who perform virtually the same work will be paid equal wages.”
To give meaning to the concept of equal pay for equal work, scholars and civil rights leaders have focused attention on the concept of comparable worth. Comparable worth is the principle that men and women should receive equal pay for work requiring comparable skills, responsibility, and effort when the work is performed under similar conditions.
Laws requiring compensation to be based on comparable worth would address systemic problems that perpetuate gender disparities in pay. For example, nursing jobs are typically filled by women while internet technology jobs are typically filled by men. A nursing professional and an IT professional who both work for a hospital might have similar educations, working conditions, and decision-making authority, yet the hourly wage for the IT professional might be much higher than a nurse’s hourly wage.
The Equal Pay Act, as interpreted by federal courts, does not address pay disparity in comparable jobs. Unfortunately, neither does Florida law. The business community has disparaged the concept of comparable worth for decades. The term is rarely used in current legislative efforts, but the principle of pay equity is still alive.
Paycheck Fairness Act
Proposed federal legislation, including the Paycheck Fairness Act, would promote gender equity by prohibiting employers from asking job applicants about their salary histories. Since women typically have earned less than men, employers that base wages for new hires on their prior earnings are likely to pay women less than men. Courts typically hold that basing wages for new hires on prior earnings does not violate the Equal Pay Act.
The Paycheck Fairness Act would also prohibit companies from retaliating against employees who share wage information. Retaliation is often designed to prevent female employees from learning that they are paid less than men for the same work.
The Paycheck Fairness Act passed the House in March 2019. Like other recent proposed legislation that would help employees, it has entered a legislative graveyard in the Senate.
California’s Equal Pay Act
California has enacted some of the most worker-friendly laws in the nation. Doing so has not diminished the state’s vibrant economy, notwithstanding complaints from business leaders that laws benefitting employees inevitably reduce profits and cause a loss of jobs.
California’s original version of the Equal Pay Act tracked the language of the federal Equal Pay Act. California recently amended its law to prohibit an employer from paying any of its employees “at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions,” subject to certain exceptions.
The state legislature made clear that by replacing the phrase “equal work” with “substantially similar work,” it was requiring employers to consider the comparable worth of jobs that require similar skill, effort, and responsibility. While the law allows exceptions based on seniority and merit pay, employers may not use an employee’s prior earnings history to justify disparate pay.
The Future of Equal Pay
The gender pay gap is shrinking, but it persists because inequity is often built into the assumptions that employers make about the value of jobs typically filled by women and those typically filled by men. The Paycheck Fairness Act and California’s recent amendment of its Equal Pay Act represent meaningful reforms that, if enacted federally or in Florida, would help local employees receive the pay they deserve.
Until those laws are passed, female employees who are paid less than men might still have a remedy under Title VII or the federal Equal Pay Act. An employment lawyer can examine the facts and decide whether victims of sex discrimination in pay can assemble the evidence they need to pursue a remedy in court.