If You Play Fair, They Should Pay Fair: Why the Women's Wage Gap Persists

There’s a lot of talk this week about the Paycheck Fairness Act (PFA) and its chances for passage as Congress is set to adjourn, and head home for campaign season. The act is a necessary next-step piece of legislation when it comes to protection against gender-based wage disparities, by simply strengthening – and updating - the existing Equal Pay Act. Indeed, the bill notes that “in many cases the pay discrimination can only be due to continued intentional discrimination or the lingering effects of past discrimination.” Yet the misunderstandings and deliberate misinformation about the bill abound.

The Paycheck Fairness Act, S.182, was introduced by then Senator Hillary Clinton in 2009 as a way to address the limitations in the Equal Pay Act and to act as a companion to the Lily Ledbetter Act. In almost fifty years, the wage gap between women and men working in equivalent positions has narrowed by all of eighteen cents. At this rate, notes Valerie Jarrett, Chair of the White House Council on Women and Girls, without shoring up equal pay legislation it will be a couple more generations before we establish pay equity in this country.  Advocates say most Americans support the bill  – and they (and the White House) – aren’t willing to wait that long.

It’s already passed the House of Representatives and is being shepherded, in the Senate, by Sens. Barbara Mikulski (D-MD), integral in the passage of the Lily Ledbetter Act, and Chris Dodd (D-CT). President Obama has been clear – if the Senate passes the bill, he will sign it. This past week, Depart of Labor Secretary Hilda Solis led a webinar, with Lily Ledbetter, about the act. Vice President Biden, in a recent speech advocating for passage of the bill said that senators “should get on the right side of history.”

It’s an important bill and one with the potential to help rebuild a crumbling economic state – especially for families with working women (the majority of U.S. families), women who are primary breadwinners and single mothers and their children.

To keep up with the times, the act both protects employees from and rewards employers for maintaining a gender-based wage discrimination free workplace by strengthening existing protections.

Says Sharyn Tejani, Director of the Workplace Family Program for the National Partnership of Women and Families:

“It doesn’t change who is currently covered by the Equal Pay Act. It makes sure that if a business is paying men and women different money for the same job they have to have a business reason for doing so. Right now the law simply says a business can have any reason, other than gender, [to pay women and men different wages for equivalent positions]. You could have a bad reason - but this [the FPA] would change it to say it has to be for a business reason.”

Why do we need to strengthen current law?

Despite having the Equal Pay Act on the books for 47 years, gender-based wage discrimination persists. This means that, controlling for similar education and experience, men and women are still paid differently for doing similar jobs. Workplace demographics, however, have changed drastically over the last almost fifty-years, without the necessary family-friendly policies to keep up.

Women now make up almost 50 percent of the labor force yet still make only 77 cents for every one-dollar a man makes. This sharply decreases for women of color. Two working parents or a working single parent lead 70 percent of families in the United States. Single female-headed households are only on the rise – yet account for the poorest sectors of our society.  Despite the assumption made by some that a pay equity governmental policy is pointless because most women are “opting out” when they have a baby, have a male partner serving their every financial whim, or are simply working less hours at a similar job to their male counterparts, the facts do not bear this out.

Moreover, we do not have enough protections built into current law that allow employees to act, without retaliation from their employers, when they do suspect gender-based pay inequity. Currently, while there is no law that expressly forbids discussion of one's wages, there are very few protections for employees who do. But this has made it near impossible for women to uncover potential discrimination – and then to work on addressing it. Tejani says:

“…one of the things about wage discrimination is that no one knows what others are paid, so it [the FPA] would protect employees who talk about their salary.”

Finally, the act creates a negotiation skills training program for girls and women; provides assistance to all businesses to help maintain best practices and a national award for those who do; and allows the federal government to gather data to better enforce gender-based pay discrimination.

There are some, like conservative spokesperson Cristina Hoff Summers of the American Enterprise Institute, who believe that because the pay differential between men and women may, in part, be attributed to women’s choices (“women are more likely than men to leave the workforce to take care of children or older parents. They also tend to value family-friendly workplace policies more than men, and will often accept lower salaries in exchange for more benefits,” writes Hoff Summers.), the Paycheck Fairness Act is an inappropriate remedy.  She argues that mandating pay equity will only pit genders against each other and encourage more lawsuits.

But Tejani told me:

“Look, if you look at an apples to apples comparison, if you control for education, experience and industry you still see pay gap. The women who are suing Wal-Mart for wage discrimination - that’s the allegation they have. Despite our laws, unfortunately discrimination is still alive. And it’s very difficult to know when it’s happening. But this law will help us get the information we need.”

If Hoff Summers is worried about too many lawsuits, is she taking issue with the one million women suing Wal-Mart for wage discrimination? Or the original plaintiff’s story? Stephanie Odle discovered insidious discrimination when, as a single mother of a six month old, she was told by her manager that her male-counterpart, doing the same exact job, was being paid $23,000/year more than her because he had a family to support. How would ensuring pay equity between Odle and her male co-worker be anything but beneficial to society as a whole? The bill acknowledges that pressing for the end to gender-based pay discrimination also means less dependence upon public assistance for families.

Sarah Seltzer interviewed American Association for University Women’s Lisa Maatz about the act and notes,

She said that Sommers is selectively quoting data — in particular, a study commissioned by the Bush administration that attempted to disprove the pay gap, but couldn’t. Matz adds that even with regression analysis controlling for things like families, time off and education, her organization has found that a gap persists.

In fact 2007, AAUW’s own study found that the pay gap begins just one year after college for equally qualified men and women.

So if this bill has the power to correct so many wrongs, why hasn’t it passed yet? Tejani told me, “Like so many important pieces of legislation, it’s been caught up in the partisan atmosphere. There’s a minority in Congress saying we won’t go ahead and vote.” This is despite the fact that some of the Republicans blocking a vote supported final passage of the bill’s companion, the Lily Ledbetter Act, with a similar premise.

Ah, yes. This partisan line in the sand approach. Did someone say Defense Authorization Bill with DADT, The Burris Amendment and the DREAM Act attached?

We are in desperate need, in this country, of concrete action that will help the majority of working families establish firmer financial ground by making sure women, co-bread winners in the majority of American families, are not discriminated against in the workplace, on the basis of gender alone.

No one is throwing businesses under the bus, either.

“Employers have the chance to defend themselves. So they could argue that there is a legitimate business reason for a difference in pay [between a man and a woman doing similar jobs]. This act does not require anything – it simply makes employers accountable," says Tejani.

To take action, visit the National Partnership for Women and Families site.