Little-noticed last week amidst the hubbub surrounding airport security machines was the torpedoing of the Paycheck Fairness Act at the hands of Senate Republicans. The fact that it took me some effort to find out the specifics of the bill shows you just how little it’s being talked about. To put it briefly, it actually gave teeth to the Equal Pay Act of 1963 which, while noble in sentiment, was very difficult for women to put into practice. This site gives an excellent rundown of the situation (see point #2 in particular).
Before anyone comments or sends me email about how the pay gap is a myth because ladies make babies, I suggest reading the entirety of the two links provided above. Then you can make your dunderheaded remark that only reinforces my opinion that you’d make a sucky boss. (Actually, most SlowpokeBlog commenters seem pretty smart, so perhaps I’m jumping the gun.)
Also, enough with the corporate-supremacist twaddle that the Paycheck Fairness Act is “bad for business.” As if hordes of suing women are going to upend the economy. Sorry, I think banking deregulation beat us to it! If the GOP trots out its faux concern for small business one more time, I’m… I’m… I’m going to draw another cartoon, dammit.
Women with the same education, work history, and commitment to the job make the same amount as men. Women with less, make less. Women with more, make more. There is relatively little identifiable wage discrimination in the classic sense; where it does occur, it is actionable under current law.
At the same time, women on the median earn 77% of what men on the median earn, across the board. Why? Because women tend to take jobs with lower hours, more flexible schedules, and lower levels of expected commitment, in order to spend a larger time with their families than men do, and they tend to take mid-career breaks for childrearing or elder care.
This may be – I would go so far as to say is – very often the result of a sexist society that conditions women to take their family more seriously than they take their career, and to prioritize children over vocational success. Women are making these choices, but it is entirely legitimate to argue that they’re making them under a degree of duress and stress not experienced by most men.
That’s not a social condition that can be changed by Congress passing a law, however.
There is a reason this law couldn’t even attract the support of the GOP’s women Senators, women who have in the recent past supported equal pay laws. Requiring an affirmative defense of pay structures puts a tremendous burden on the economy and adds a huge amount of uncertainty to employers. If you haven’t noticed, we’re already in the midst of an uncertainty-based economic crisis. The last thing we need is more lawsuits.
The original equal pay act is fair. It requires plaintiffs to demonstrate actual discrimination, not just “I make 70k and Frank makes 80k and nobody can point to an objective formula that says why” – a requirement for documentation of process that is simply unattainable for many employers. I could not justify my pay scales in any objective way; not everyone works in a Fortune 500 company with a formal HR department that lays out salary bands. A lot of people just wing it. The net outcome of that winging, over the entire economy, appears to be pretty fair in terms of like compared to like; a woman engineer from MIT with a 20-year unbroken record earns about the same as a male engineer with the same record.
There are objections to the existing law which I find credible. The limitation on awards does serve as a disincentive to suit; it’s more financially sensible for a woman who has been discriminated against to just find a job with a less discriminatory boss. We could up those limits without being unfair to anyone, and add some teeth to the existing law. I also am OK with a provision allowing salary discussion; when a participant in a market transaction demands secrecy about the terms, there is usually a (bad) reason for it. The data collection parts of the new law also seem fine.
Shifting the burden of proof to employers, however, is a huge change that would have pernicious effects on employment practices and would encourage rent-seeking suits from people who’ve never been discriminated against in their lives. One of the basic principles of our legal system is that the plaintiff has to be able to show harm; we don’t allow fishing expeditions where defendants have to prove that they’ve never done harm.
And that’s why the law went down in flames. A bill to fix the genuine flaws of the previous law might have stood a chance of attracting bipartisan support; a bill to upend the settled understanding of who has to prove what in a legal action had zero chance.
Looks like it’s moot now, but how does the substantially equal thing work? It can’t be limited to only male-female comparisons, right?
Say Amp and I have “substantially equal” positions (which is far from saying they’re identical.) Say that Amp is a better employee, and/or that his position, while “substantially” similar, is actually more advanced. Would the proposed law mean that he can’t get more money than I do? That would be very bizarre–it can’t be true, can it?
As linked in my post:
“Business justification” goes to the position, however, not to the individual.
G&W’s scenario would in fact have been actionable under the legislation, because “Barry is awesome, while G&W is kind of a fuckup” is not a business justification. The legislation (linked here) changes the old set of exceptions, which allowed the employer to (defensively) justify a differential by using “any other factor other than sex”, and replaces it with “a bona fide factor other than sex, such as education, training, or experience”.
Education, training, and experience are all great differentiators, but they don’t even come close to being exhaustive. Conspicuous by its absence: mention of performance.
Other scenarios which would have been actionable under the legislation:
I need two workers for my business. Barry and G&W apply to work at my banana stand. The job pays $120,000 per year (there’s always money in the banana stand). Of my 100 applicants, only Barry and G&W meet my high standards. G&W takes the offer and starts work. Barry says “I won’t do it for less than $125,000.” Chagrined at his excellent reading of the tight labor market for banana stand workers, I agree to pay him $125,000.
If G&W has a penis, then I’ve done nothing actionable. If G&W has a vagina, I’m now subject to a huge lawsuit, because there was no business necessity for these two people to be paid a different wage; one of the people was just a better negotiator or had better information than the other.
Luckily for me, despite the differential and despite her new legal privilege to ask nosy questions about people’s paycheck, G&W never asks Barry what he makes, so I skate on that lawsuit. Two years go by.
Barry and G&W both come to me and ask for a raise. Barry’s performance has been excellent and in addition, he always spends his lunch hour reading MBA texts and coming to me with suggestions for increasing revenue. G&W’s performance is also excellent, but she (I’m assuming we figured out she has a vagina) takes her normal lunch hour. I give Barry a $15,000 a year raise, and give G&W a $7,500 raise.
Again, there’s no business justification for this. Doing extra work outside the job description to kiss my ass is not a “bona fide factor” to the law, but it sure is a bona fide factor to me. Now I’m on the hook again, if Barry runs his mouth anyway.
There are a LOT of reasons for differential pay that do not qualify as bona fide job requirements, but which nonetheless are de facto real factors that appropriately factor into compensation.
Barry has displayed “a s0lid awareness of the market” that G&W lacked by demanding higher pay to start with, and he “contributes substantially to the future of the business” by brainstorming with the boss during lunch. Barry shows more experience with crucial factors in the banana stand economy; his higher wage should be easily justifiable.
My job is certainly capable of stating who is and is not contributing above and beyond the job description. A company that can’t figure out how to state why one worker is more valuable than another and therefore should be paid more, doesn’t deserve to survive.
Damage caps do not exist to make it ‘more financially sensible’ to switch jobs instead of filing a lawsuit. The goal of damage caps is to make it impossible to file a lawsuit, by making it financially unsound for a lawyer to take the case.
One of the social conditions that affects women’s choices, by the way, is workplace discrimination. If your boss is going to ‘mommy track’ you no matter how much time you put into your job, why bother?
@Robert
You make some valid points in your post, but you main point (“women with the same education, work history, and commitment to the job make the same amount as men”) isn’t supported by the bulk of employment research. However, it is important to note that the advantage men have over women is uneven rather than uniform. For example, a study by Gilbreath (“Starting Salaries of College Graduates,” Journal of Legal Economics, Vol. 13, No. 2, (April 2006), pp. 79-95.) suggests that more often than not, males receive higher starting salaries than women. In addition, although this disparity is growing in some fields, women actually receive higher starting salaries in 37% of fields. So, while I would accept that research hasn’t shown men to always have an advantage in the pay gap, they do appear to in the majority of instances.
@AL – It’s supported. There are lots of studies that find various forms of discrimination depending on how and where you look (and I agree that there are sectors where discrimination is more or less present) but “big picture”, choice-based or semi-choice-based factors account for nearly all differences in pay. In 2009 the Department of Labor commissioned a study, the findings of which are quite interesting. Correcting for the factors we can correct for, the gap is 5-7% for most jobs. That number is high, however, because it’s hard to compare nonwage benefits and there is separate evidence to indicate that women differentially opt for compensation packages that have more nonwage benefits and less cash. The real balance is pretty close to equity.
This does represent a change, by the way. Thirty years ago, it was not true that women more or less made the same as men doing the same work. (There was, after all, a reason for the original equal pay act.) But things do change, however slowly.
Starting salary for new graduates strikes me as a dubious basis from which to draw any conclusions. Negotiation skills and individual’s assessment of their own worth, two areas where men broadly have the edge, are very strong factors in that hiring scenario. (Joe may be deluded about how much he’s worth, and so it might take him longer to find a job where they’ll pay him in accordance with his delusions, but when he does his salary will count the same in the study as Sally’s and will indicate a male “advantage”, but in reality the Joes will have a 20% unemployment rate for the first year after graduating while the Sallys will have a 5% rate.)
Employment decisions by both employer and employee are always massive sets of tradeoffs. Sometimes we can make valid comparisons between sets of tradeoffs, but just as often what looks like inequity is simply the result of people valuing things differently.
@Elfwreck – I am sure they will be able to come up with some bullshit justifications that satisfy the courts, if not the women in question. That will be a productive use of everyone’s time, leading to lots of economic growth and good jobs in the Office of Filtering Bullshit Justifications, right?
@Mythago – who gives a shit what the intent of the law is? Fine, they meant to scare off lawyers rather than women. The net effect is to scare off both.
I wouldn’t bother with an employer who was planning to “mommy track” me anyway, either. And?
If Robert is right about who would bear the burden of proof this sounds like a bad law.
Hey! Hey! I have asked you nicely not to mangle my merchandise. You leave me no choice but to…ask you nicely again.
Looking at the second article:
How are women special in this regard? Why would a man be more likely to know what a job truly pays and thus not undervalue themselves when they negotiate a new salary?
Are women paid that much less for doing the same job that this becomes a factor? Or is this a summary effect of women working in lower-paid professions, perhaps to enable them to have the flexibility to take time to raise children? My wife gets paid a lot less than I do, but that’s because my job takes a lot more technical knowledge than hers.
I have zero trust in these job evaluation systems. If a woman and a man are both truck drivers and spend the same amount of time hauling the same kinds of loads but the woman is paid less, then that’s most likely discrimination. If a company keeps turning down women applying for driving jobs and only hires men I’ll say the same. But when I read articles such as these that allege that there is sex discrimination because women make less money than men for performing “substantially equal” work, I have to question and greatly doubt the validity of the evaluation of “substantially equal”. It seems to me an arguable position that there’s a role for government to ensure that both those truck drivers get paid the same amount of money. But I don’t think it’s got a role in doing social engineering because someone’s cooked up some job evaluation methodology that claims that one particular job that mostly men hold is equivalent to some other particular job in a completely different industry that mostly women hold, and that this is therefore unjust.
I have to say that the “substantially equal” thing does in fact sound like a load o’ crap. But it’s the same general argument as always:
John: “My job is substantially the same as Job Y. But Job Y pays more. I am being discriminated against.”
Emma: “Well, why didn’t you do Job Y?”
John: “It’s not as fun / it’s not as satisfying / the schooling is harder / the hours are worse / I’m not tall enough, smart enough, or skilled enough / there aren’t a lot of openings in Y field, so it’s harder to get hired / there are too many people trying to get jobs in Y field, so it’s harder to stand out / I don’t like the cities and locations that usually hire in Y field / I want more flexibility than you can get in Y field / etc.”
Emma: “that doesn’t sound substantially the same. In fact you’ve just listed all sorts of reasons why it’s not the same. Why should you get paid the same?”
and so on.
If you want an chemical engineer’s salary, then you should take as much science and math as you can in high school, choose your college based on the chemistry program, major in chemistry, and try to get a job. But if you realize after college that you WISH you had done that, you don’t get to take an “equivalent” job based on what you DID choose to do, and then demand that you be compensated for the injustice.
@gin-and-whiskey
The reason “sustantially equal” comes up is because some businesses hire an “accounts manager” (who manages no-one) and other businesses hire an “accounts assistant” (who assists no-one). One is a male job, the other is a female job, and they have the same responsibilities.
But either way, I can understand the points made by the MRA-types…. whether they’re valid will be argued until the end of time.
The ones that really cheese me off are the conservatives who say “now is not the time for this” or something to that effect. No. Either women are being discriminated or not. If so, it wouldn’t be okay to ignore the problem in the middle of the Great Depression.
Now that I agree on, SiF.
That’s fair enough. What I would say is these cases aren’t usually about a job evaluation being performed after the fact and a complaint being made – you’re right that these evaluations could come up with so many different answers to be meaningless. They’re normally about an evaluation being performed according to a set of pre-selected criteria, and then an employer ignoring the results when they turn out to be not what they want to hear. Regardless of the wisdom of the evaluation, I think there good employee rights reasons to make employers be coherent and follow the logic through. It’s wrong to say you’re going to play by one set of rules and then change your mind when you don’t like the result.
It’s a fudge, but a justifiable one. If jobs had to be identical, it’d be very hard to enforce equal pay as people would be able to justify discrimination by creating and pointing to trivial differences between jobs. Allowing courts the discretion to ignore minor differences is just needed to get the system working.
Who gives a shit? The people pushing for those laws, apparently. If you’re a big employer, you don’t have to worry so much about being sued if you know that even if you do something improper, the ability of somebody you hurt to actually sue you is pretty near zero. But you knew that.
And it’s so nice to be an armchair quarterback about situations you’ll never have to face. Why, if I were a woman I’d blahblahblah so all this stuff about discrimination is so much nonsense, ladies, you just need to vote with your feet! And who gives a flying fuck if you make 5% less than if you had a penis, there’s probably some handwavy reason that’s not really discrimination, either.
Right, Mythago. As a gay bachelor without a wife, mother, sister, or daughters, I don’t care anything about what happens to women because nothing that happens to women can have any impact on my own life.
Oh wait.