Women are becoming better educated than men. Women already earn over one-half of all bachelor’s and master’s degrees; they lag behind only in the number of doctorates conferred. Women, therefore, will be better qualified than men to suppose positions of authority. Better-educated women are less expected to accept career barriers created by such discrimination, more likely to distinguish discrimination for what it is, and more likely to act on the conviction that sex discrimination has no place in their lives.
The female worker of the future is likely to be a mother of young children. Already, 64 percent of all married women with young children are working mothers; 37 percent of divorced, separated, and widowed mothers with young children are working or looking for work (Chapkis Wendy. 1995).
These women are not expected to readily accept employment policies originated on the conjecture that a working mother’s child-rearing responsibilities essentially conflict with her work responsibilities. As these women are better educated than past generations of working women, they are more expected to appeal to the courts to get legal relief from all employer-initiated biased conduct, policies, and practices.
For almost four decades, this country has been engaged in forming workplace equality for persons of different races and ethnicities, and it has attained some success in that regard. At the same time, we have been engaged in forming a workplace that will take full benefit of and fairly compensate women. Whether we will succeed in attaining either of these goals remains an open question.
Because women usually have assumed primary familial accountability for the rearing of their children, men, relieved of such responsibilities, have performed well in jobs needing a near total commitment to the workplace. An employer can structure a job description that demands an inflexible work commitment, while ignoring the impact of such a commitment upon the (presumed male) worker’s family, as the employer can safely suppose that the worker’s wife will understand all child-rearing responsibilities. This is no longer the case in our society. The male worker’s wife is now more expected to be employed herself and thus is no longer accessible for full-time child care.
But unenlightened employers continue in requiring the recognition of a work ethic that establishes the job as the central, if not the sole, precedence in a worker’s life. Those who agree to function in such a competence are sometimes referred to as “ideal workers.” (Davis James H., Alan B. Henkin, and Carol A. Singleton., 1994)
Historically, employers have leaned to classify women as capable only of “women’s work,” positions that subsist in relatively few occupations and rank amongst those with the lowest status and compensation. The job of women to such positions results in the segregation and stratification of women in the workplace. The consignment of women to occupations unreasonably female tends to extend their separated and stratified roles.
Until recently, 95 percent of all secretaries, stenographers, and typists were women. Though a significant reduction in job segregation has occurred in professional positions, it continues in numerous other job categories. The Census Bureau’s 2000 Statistical Abstract of the United States reveals the breakdown. Though Census Bureau statistics disclose some development in the hiring of women in some other job categories, women are still usually excluded from the male-dominated positions.
Undoubtedly, some women who expect that they will be called upon to fulfill family responsibilities liberally choose to work in lower-paying and lower status positions; they may be hesitant to make a considerable investment in job training or to make the commitments needed to attain higher-paying and higher-status posts. But women’s careers are evenly likely to be shaped by the job opportunities that employers historically have made accessible to women. Employers who falsely perceive women as exhibiting less commitment to their jobs feel justified in handing over them to high-turnover positions with low-turnover costs, and these jobs usually carry low pay and little status.
In addition to encountering glass ceilings, male-dominated work environments, and job segregation and stratification, working women also deal with other areas of discrimination in today’s workplace—discrimination against older women, against women of color, against professional women, and against women who are pregnant. To intensify matters, sexual harassment of women—of all ages, of all skin colors, in all job categories, and in all occupations and professions—permeates the workplace.
Pay inequity for women has long been a common practice. Women, on occasion, have asserted unequal-pay claims under the umbrella of Title VII protections. To succeed, a complainant should first demonstrate that she is paid less than a man performing similar work. The two jobs in question should be such as to permit the court to determine that the two workers are “similarly situated.” The accuser then must prove that her employer’s decision to pay her less than her similarly designated male co-worker was an act of intentional discrimination. This is a burden of proof not willingly sustained.
The ongoing existence of disparities in compensation between men and women has been a mid issue in the battle to attain workplace equality for women. Even before the enactment of Title VII, Congress passed and President John Kennedy signed into law the Equal Pay Act of 1963 (EPA), legislation designed to assist women in achieving “equal pay for equal work.” The Supreme Court later commented that Congress’s purpose in enacting the EPA was to remedy what was supposed to be a serious and incessant problem of discrimination against women—the truth that the wage structure of many segments of U.S. industry was based on “an ancient but outdated belief that a man, because of his role in society, must be paid more than a woman even though his duties are the same.” (Corning Glass Works v. Brennan, 417 U.S. 188, 1974).
An employer violates the EPA if it pays a man more than a woman who performs a job needing the skill, effort, and responsibility equal to that of the man’s job, and the two jobs are performed under similar working conditions. Unlike Title VII, the EPA complainant is not necessary to prove that her employer deliberate to discriminate against her by paying her less. The simple fact that a compensation disparity exists is sufficient to prove her case, unless the employer is capable to justify a pay differential by reason of the existence of seniority, merit, or an incentive system, or as a consequence of some factor other than gender. It appears, therefore, that a woman belligerent of a compensation disparity must be able to establish her case with ease. In practice, however, proving an equal-pay case is far harder than Congress originally intended.
A woman seeking option under the statute require not prove that she is paid less for performing a job that is indistinguishable to that of a more highly paid male worker, but she should establish that the two jobs are equal or, as some courts have portrayed it, are “substantially similar.” EPA cases are often lost because female complainants are unable to establish that their jobs require skill, effort, and responsibility equal, or substantially similar, to those of the more highly compensated male. If the two jobs are unequal in any one of those respects, the court should reject the complainant’s claim, and—as of the difficulties experienced by women in indicating that the positions in question are equal or substantially similar—the EPA thus has provided little protection for the vast majority of women asserting pay equity claims.
To understand how the courts have applied the Equal Pay Act to pay discrimination claims, I will illustrate some cases. Dr. Marjorie McMillan was director of the radiology department, one of seven veterinary departments, at Angell Memorial Animal Hospital in Massachusetts. When a local newspaper published a letter relating to the hospital’s finances, it listed the salaries of various employees, and McMillan discovered a disparity between her salary and that of the other department directors: She was earning $58,000 a year, while her male counterparts’ annual salaries ranged from $73,000 to $80,000. With this information in hand, McMillan sued the hospital for pay discrimination in infringement of the EPA.
At the trial, McMillan offered proof comparing the skills, effort, and responsibilities of her position, as the director of the radiology department, with those of the male department directors who were more highly compensated, and she demonstrated that the job requirements for each of the department heads were mainly the same. Her proof satisfied the demands of the Equal Pay Act, and the jury’s award of considerable damages in McMillan’s favor was later affirmed on appeal (McMillan v. Massachusetts, 1998).
In a less successful case, Cherry Houck, a professor at Virginia Polytechnic Institute, sued VPI for violation of the Equal Pay Act. Contrary to the approach taken by McMillan, Houck failed to recognize specifically the male colleagues she claimed were paid more than she. She simply testified that in her department, men usually received higher pay than she, although their jobs were basically the same as hers. As she failed to compare her job with that of any particular male in her department, the court was incapable to determine whether she was in fact paid less for considerably similar work. Houck’s case was fatally flawed (Houck v. Virginia, 1993).
In an Equal Pay Act case, the complainant and her attorney should take care to select the right job for comparison with the complainant’s. Josephine Cherrey, an “inside sales clerk” for the Thompson Steel Company in Sparrows Point, Maryland, alleged that Thompson violated the EPA since it paid her, on average, $14,000 a year less than it paid two male employees who she claimed performed considerably the same work as she. Before analyzing the facts in the case, the court recognized a framework to determine whether the jobs to be compared in fact required the same skill, effort, and responsibility. The court stated that if the jobs had a common “core of tasks,” the inquisition would then turns on whether differing or additional tasks requisite greater skill or effort or entailed greater responsibilities for the workers in the positions being compared. The court used this support to measure the degree of similarity between Cherrey’s job and the two other jobs in the inside sales department she claimed were similar.
Clearly, some overlap existed in the three positions. The employees in all three positions handled customer sales and complaints, and all three worked to accelerate sales and quote price and delivery terms to customers. Though, significant differences also were present. One of the positions that Cherrey used for comparison was that of her supervisor. But he commonly conferred with upper management and Cherrey did not. Both comparison employees performed functions that Cherrey was not necessary to perform, such as market research and the development of sales strategies. In the court’s view, the differences in the requirements of the three positions outweighed the common “core of tasks,” consequently rendering the positions unequal in terms of skill, effort, and responsibility. This evidence was more than sufficient to defeat Cherrey’s claim (Cherrey v. Thompson, 1992).
Prior to the enactment of Title VII and the EPA, women were paid just 60 percent of the wages paid to men. By 1997, they were earning 74 percent of their male colleagues’ compensation (Bureau of the Census, 1998).
The gains in compensation for women have been regular, but small. The failure of the EPA and Title VII to deal more efficiently with the pay equity problem has fomented interest in amending the statutes, in particular the Equal Pay Act, to ease the required burden of proof. Critics of the EPA have long suggested changing “equal skill, effort, and responsibility” to “comparable skill, effort, and responsibility.” In fact, the first drafts of the EPA submitted to and measured by Congress used the term “comparable” rather than “equal.” If that language had been retained, the burden of proof would be a less formidable barrier to female complainants pursuing pay equity cases. Based on the history of case failures, an adjustment of the statute appears to be in order.
Historically, courts have been unwilling to enter into employer employee frays involving promotions. Even where the existence of flawed promotion procedures is apparent, a court can hesitate to overrule management’s decision to contradict promotion to an employee, as that decision can have been based on bad judgment rather than discrimination, and bad judgment, in and of itself, will never ascend to the level of unlawfulness. “The law forbids invidious distinctions, not mistakes” (Rubin v. Regents, 1988).
Unless a worker’s qualifications, while compared with those of the worker who has been awarded the promotion, are so far superior that the employer’s reasons for the promotion should be viewed as a stratagem or pretext for discrimination, the worker generally will not overcome, except in instances where she is capable to submit independent evidence of a inequitable motive. Nearly all promotion cases, therefore, turn less on a comparison of a worker’s qualifications than on the weight of the confirmation demonstrating an offensive employer motive. This approach to promotion cases is well illustrated in Jane Flucker’s sex discrimination case against Fox Chapel Area School District in Pennsylvania.
Flucker, an English teacher, complained that she had not been interviewed for promotion to a middle school position. The school district argued that an interview was unnecessary, as the selection committee was responsive of her work and had viewed her performance evaluations. The judge that heard Flucker’s case stated that if the decision had been left to him, Flucker would have been selected for the promotion: “As a graduate of Smith College, with over three years’ experience in the Princeton, New Jersey high school, with a face out of Botticelli and the charm of Southern speech, how could she possibly lose out in competition with a graduate of West Liberty State College … who … had taught ‘Mass Media, Revolutionary Lit., Myths & Legends’?” (Flucker v. Fox Chapel, 1978)
But the mere fact that Flucker was better competent than the successful male candidate did not essentially prove sex discrimination. Though the failure of the selection committee to choose the better-qualified teacher for the promotion can be considered evidence of a discriminatory motive, in this case the court felt that the proof was insufficient to found sex discrimination. The court was not set to declare that Flucker’s qualifications for the position were so far better to those of the other candidate that the school district’s reasons for not promoting her inevitably had to be considered as pre-textual. Thus, to prevail, Flucker had to proffer the court evidence establishing more than just the shortcomings of the school district’s encouragement procedures. She had to offer convincing proof that the actual reason for the selection of the successful candidate was his gender. But Flucker was incapable to offer any such corroborative evidence, and thus the court dismissed her case (Flucker v. Fox Chapel, 1978). As another judge expressed it, without supporting evidence of a discriminatory intent, “We should accept the harsh fact that frequent individual mistakes are expected in the day-to-day administration of our affairs” (Bishop v. Wood, 1976)
Some employers appear oblivious to the negative appearance they present to anyone reviewing their promotion procedures; their obvious behavior supplies the supporting evidence missing in the Flucker case.
However, the wage gap is closing, but women are still lagging behind men in salaries. Between 1960 and 1995, the annual female-male earning ratio increased from 60.8 to 72.0–things are getting better, but there is still a 30 percent gap. Again, the more those vocations are female-dominated, the lower the pay, yet women still lean to gravitate to these fields. This tendency has to be a factor, though to what degree remains a matter of debate. Free market advocates are not completely correct when they say that the system is neutral and nondiscriminatory, for years of research indicate otherwise.
However, the amount of the market’s responsibility is a constant point of disagreement amongst different factions. Laissez-faire advocates put out caution flags when discussing any policy, such as comparable worth, that would manipulate a self-regulating system. Tampering with the “natural” wage-setting means of supply and demand would threaten the complete economic structure, they argue.
If a person is in distinguished demand because of a special expertise, he or she will command a high wage: for instance, a heart transplant surgeon will be in greater demand and, consequently, make more money at a time while there are numerous patients waiting for such transplants. On a blue-collar level, if there are few plumbers in an area where plumbing services are at a premium, plumbers are of course going to receive a good wage.
There are, however, some obvious glitches in this “hands-off” theory, the most obvious being truth and fairness. Indeed, government has stepped in at certain points in history to establish limits on the free market system’s autonomy, one instance being Child Labor Laws and Title VII of the Civil Rights Act of 1964. Most people consider this intervention a good thing and necessary for human justice, as it protects children against development and makes blatant job discrimination illegal.
A less popular form of market exploitation is practiced by the federal government when it acts to bail out corporations that are on the brink of bankruptcy, as happened in recent years with Chrysler and Amtrak (a practice commonly referred to as “welfare for the rich”).
By acting in this manner, the state has sought to shield the market and economy from the fall-out that would result if these corporations should fail, together with the large numbers of layoffs that would inevitably follow. These cases alone must be enough to justify abandoning the language of “free” and “neutral” markets “untainted” by intervention.
However, with the increasing numbers of women entering the workplace, wages will progressively become equitable since this will just prove to be “good business.”
Just as many corporations have sustained to implement affirmative action policies (even though it has become a hotly controversial issue in both the legislature and many social circles) because maintaining multiplicity in today’s global market is in their interest, so too can the same argument be made for comparable worth: It may be seen as good for business that women workers feel they are being moderately compensated. Women, sheerly by virtue of their growing numbers in the workplace, will certainly gain more voice and power though it likely to be a slow process–perhaps too slow for many.