Tuesday, September 13, 2011
Pay discrimination, like many forms of discrimination, is a particularly sticky problem. In many instances, just as with other forms of discrimination, it is unrealistic to allocate all the blame and burden for its continued existence on a single actor, whether it be an employer or employee. Thus, the traditional civil rights regime in which an individual actor is held liable for the discrimination does a poor job of dealing with this problem. I propose an intervention - pay transparency - that would help prevent, root out, and correct the discrimination in the first place, instead of relying solely on after the fact blame and liability.
Pay transparency - the ability for employees to find out what other employees in their workplace make - is rare outside of public employment, and cultural norms against talking about one’s income may make it frightening to some readers. Yet, unlike many other approaches to reducing seemingly “blameless” discrimination, such as targeting unconscious discrimination, or potentially counterproductive “debiasing” efforts, incentivizing pay transparency can fit very comfortably within our legal framework. By turning pay transparency into an affirmative defense to pay discrimination claims, this preventive measure can be woven neatly into our current approach to civil rights enforcement and notions of individual responsibility.