The Judiciary Attacks Equal Pay

A society can only truly be successful and reach its fullest potential when all members play an active and productive role. Or should I say, when all members are allowed to play such a role? When sexist confines like the wage gap hold half of a country’s population back from achieving their full potential, something is inherently wrong, and the society is crippling itself. It turns out that not everyone sees it this way.

In the most recent United States Census, women comprised 50.3 percent of the American population. According to the Institute for Women’s Policy Research, almost half of the country’s workforce is made up of female workers, who also account for half of family breadwinners in the U.S. And yet, women can expect to earn only roughly 80 percent of what their male counterparts will earn. A gap still exists between women working lower-level jobs than men in higher positions, just as one can be found between men working lower-level jobs than other men. The problem here is that women with the same level of experience and value to a place of work are being paid less on average than what men are paid for doing the same exact job.

President John F. Kennedy signed into law the Equal Pay Act of 1963, which prohibits wage discrimination on the basis of an employee’s gender. It does, however, allow for wage discrimination “based on any other factor other than sex,” which includes things like seniority and merit, as well as literally anything else an employer might decide is a reason for disparities in pay. While prohibiting outright discrimination based on gender is wonderful, this law opens up other avenues for inequality that contribute to the 80 cents to a dollar ratio between women and men in the same jobs.

There should really be no discussion about whether a disparity in pay for the same job between two individuals is about gender or “any other factor” in situations when the only differing factor between the two people is gender. Yes, employers will sometimes seek to match someone’s former and higher salary, and this is a logical business policy. But the issue is that, on average, women are paid less than men to begin with. Say there is a man and a woman entering the same job, both with the same levels of education and experience, but the man made more in his previous position because of the wage gap. He will continue to earn more than the female employee if they are both offered their former salaries, and thus the wage gap continues in a vicious cycle. The Equal Pay Act could broaden its scope to better protect women in the workplace who might suffer from this commonplace business principle.

Last week, there was an upset in the enforcement of the Equal Pay Act in 21st-century America. A three-judge panel on the 9th U.S. Circuit Court of Appeals ruled to overturn a 2015 decision by U.S. Magistrate Judge Michael Seng. Seng ruled that differences in salary based on previous earning violated the Equal Pay Act of 1963 because the starting salaries for women are likely to be lower than those for men, which perpetuates the wage gap. What started as gender discrimination would be allowed to continue under the concessions made in the Equal Pay Act for other, legitimate determining factors.

The 9th Circuit Court stated that it is legal to pay women less than men based on their previous salaries if it is part of a “business policy,” effectively negating the prior ruling by Seng. This decision makes sense when taken out of context. If we consider only a business model in which a company seeks to attain an employee, it is a solid strategy to match their current salary. The problem with this ruling is not in the business model, but rather it is in the scenario of the equally experienced man and woman. Women’s starting salaries after college graduation are reported to be lower than men’s, and so if employers offer pay based on former salaries, they will continue to pay women less.

Last week’s ruling came in a lawsuit filed by Fresno County school employee Aileen Rizo, who earned less than men in the same positions as her. As her lawyer Dan Siegel put it, the decision is tantamount to “OK-ing a system that perpetuates the inequity in compensation for women.”

The wage gap has been a fact of life since women entered the American workforce in large numbers during World War II and in waves during the 1960s. In the ’60s, women made about 60 percent of what men in the same positions did. Of course, women were new to the workforce then and did not have the same experience as men. The gap steadily decreased over the next few decades, but the decrease has stagnated since the early 2000s, leaving us at the current 80 cents to a dollar ratio that does not appear to be changing anytime soon. At least, not while factors like the 9th Circuit Court ruling open avenues for the gap to perpetuate and potentially even increase, taking us back into the past.

It is predicted that women will not receive equal pay for equal work until the year 2059 at the earliest. If we don’t look to the future instead of the past and broaden the Equal Pay Act’s protections, America will be holding back half its population for at least another 42 years.

Featured Image by Meg Dolan / Heights Editor