The Pay Gap, The Glass Ceiling, And Pay Bias: Moving Forward 50 Years After The Equal Pay Act

1. INTRODUCTION

   When the Equal Pay Act ("EPA") became law in 1963, women earned approximately 59 cents for every dollar a man earned.1 Women today are earning roughly 80 cents on the dollar.2 While the past 50 years have seen extraordinary progress for women, the persistence of a 20 percent gender pay gap, coupled with the rapidly growing population of women in the workforce, has caused the government to reinvigorate its efforts to enforce and strengthen pay discrimination laws. While eliminating pay bias is important, focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.

   Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work.3 The pay gap says nothing about gender disparities within specific professions or positions. It fails to account for differences in chosen profession, education, work patterns, and work experience, among other factors.4 The pay gap is also driven in large part by the glass ceiling—the barrier keeping qualified women from rising to the upper rungs of the professional ladder.5 Women remain significantly underrepresented among the top ranks of business, finance, academia, and government.6 Studies consistently show that the concentration of women in low-paying jobs, and occupational selections—the actual position a woman selects within an industry—are two key drivers of the pay gap.7 Studies also demonstrate that while women make less money than men, they also work fewer hours each year, have more work interruptions, and spend more time doing unpaid work than their male counterparts. These work patterns, which contribute to lower wages for women, also inhibit women's rise to highest levels of their professions—particularly given the increasing proportion of high-earning individuals who work 50 hours per week or more.8 Tackling the pay gap means understanding the glass ceiling as well.

   Instead of a "crack down"9 on employers—which presumes that discrimination is the primary cause of the pay gap and the glass ceiling—more time should be spent understanding the problem. This is not to suggest that bias does not exist or diminish the importance of eliminating it. However, it is equally important to recognize that women are making life and occupational decisions based on competing demands for their time and other personal, individualized interests, many of which are industry-specific. Whether these decisions are voluntary "choices" or fueled by implicit or overt bias is extraordinarily difficult to discern and varies greatly from woman to woman, employer to employer, and job to job.

   Therefore, solutions cannot fit into a one-size-fits-all mold. Placing blame on employers and focusing narrowly on antidiscrimination legislation ignores a broader problem based on deeply entrenched societal assumptions related to how we collectively define our roles as women and men. However, dictating what roles any given person should play at any given time extends well beyond the purview of legislators, judges, and juries. Addressing the pay gap and the glass ceiling requires engaging in a social dialogue to find innovative and creative solutions to reconcile various important competing interests for employees and businesses alike. A viable solution demands a holistic approach.

2. THE HISTORY OF THE EPA AND PAY BIAS LAWS

   On June 10, 1963, President Kennedy signed the EPA and pointed to the pay gap as the driving force: "[T]he average woman worker earns only 60 percent of the average wage for men . . . . Our economy today depends upon women in the labor force. . . . It is extremely important that adequate provision be made for reasonable levels of income to them, for the care of the children . . . and for the protection of the family unit."10

   While the EPA was passed in an effort to narrow the pay gap, its focus was targeted at pay differences between men and women doing the same job. As the U.S. Supreme Court explained in Corning Glass Works v. Brennan:

   Congress' purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry—the fact that the wage structure of "many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman, even though his duties are the same."11

   Under the EPA, women have the right to sue their employers for disparate pay for equal work.12 The EPA also gives the Equal Employment Opportunity Commission ("EEOC") enforcement authority over EPA violations, whereby the government can initiate directed investigations of employers and pursue claims even if individual workers are reluctant to pursue their rights under the EPA.13

   To prevail on an EPA claim, a plaintiff must prove that she received unequal pay for performing a job that requires (1) equal skill; (2) equal effort; (3) equal responsibility, and which is (4) performed under equal working conditions to that of a male comparator's more highly compensated job.14 In evaluating whether two jobs are equal under the EPA, "equal means substantially equal."15 Indeed, Congress chose the word "equal," not the word "comparable," in the language of the statute.16 Accordingly, courts consider whether two positions share a "common core of tasks," rather than looking superficially at job titles or descriptions.17 Being similar, or comparable, is not...