Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, April 2, 2019

Understanding Equal Pay Day and the Related Laws

Today is Equal Pay Day, the symbolic day when women's earnings finally catch up to men's earnings from the previous year. It takes a few extra months because of the 23 percent gender wage gap that women typically face. However, this is not the day for every woman, as the wage gap varies by race and ethnicity.

Equal Pay Day was originated by the National Committee on Pay Equity  (NCPE) in 1996 as a public awareness event to illustrate the gap between men's and women's wages.

The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” 

The Lilly Ledbetter Fair Pay Act provides "that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability 'accrue' whenever an employee receives a discriminatory paycheck, as well as when a discriminatory pay decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is otherwise affected by the decision or practice."

Most states also have equal pay acts.

US Dep't of Labor, Equal Pay:  

When the Equal Pay Act was signed into law by President Kennedy in 1963, women were earning an average of 59 cents on the dollar compared to men. While women hold nearly half of today's jobs, and their earnings account for a significant portion of the household income that sustains the financial well-being of their families, they are still experiencing a gap in pay compared to men's wages for similar work. Today, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.

Women's demand for equal pay goes back to the beginning of the women's rights movements.  Part of the Declaration of Sentiments of women's rights proclaimed at Seneca Falls in 1848 criticized the "scant remuneration" women were paid and demanded equality.  "Equal pay for equal work" was a mantra of the 1894 women's rights convention, continuing the longstanding demand for equal opportunity and equal pay.

Last year, the Ninth Circuit Court of Appeals (en banc) held in Rizo v. Yovino that the use of salary histories violates the equal pay act.

A dated, but still important article: Sara Zeigler, Litigating Equality: The Limits of the Equal Pay Act

This article assesses the effectiveness of legal remedies available under the Equal Pay Act (EPA) in closing the gender gap in pay. Although employers frequently attribute women’s lesser pay to lags in seniority and the life choices made by women, the evidence suggests that the narrow language of the EPA, its omission of the more subtle forms of sex discrimination, and the powerful disincentives for most women to pursue claims under the act have rendered it largely ineffective in curtailing sex discrimination in compensation. Through an examination of recent developments in the area of pay equality, the article demonstrates that the act, as enforced, has produced neither equality nor equity. Arguing that the reality of sex discrimination in pay shapes life choices (rather than the reverse), the article identifies the obstacles to closing the pay gap and strategies for more effective enforcement.

The proposed Paycheck Fairness Act seeks to address some of these limitations.

See Battle to Improve Equal Pay Act Enters its 22nd Year

Rep. Rosa DeLauro (D–Conn.) has introduced the bill in every Congress since 1997. But that’s not to say the bill is without momentum; the House voted on the Paycheck Fairness Act for the first time in eight years last week—and passed it by its highest vote total ever.

When DeLauro first proposed the legislation, its stated purpose was to “revise and increase remedies and enforcement on behalf of victims of discrimination in the payment of wages on the basis of sex.” In essence, giving sharper teeth to the Equal Pay Act of 1963 that was supposed to enshrine the concept of ‘equal pay for equal work’ in the law.

In the intervening two decades, the bill’s language hasn’t changed dramatically because the problem it targets—the reality of women’s unequal pay for equal work—remains. The gender pay gap was 26% in 1997; it now hovers in the 20% range, according to Census data.

https://lawprofessors.typepad.com/gender_law/2019/04/equal-pay-day.html

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