April 8 was Equal Pay Day: on average, American women would have to work all of 2013 plus January 1 - April 8, 2014 to make the same earnings as American men did in 2013. President Obama marked the occasion by calling upon the Senate to vote in favor of the Paycheck Fairness Act and by taking two small scale, concrete efforts in the form of an executive order and a Presidential memorandum. His actions illustrate not only the potential work that the law could do to eradicate the gender pay gap, but also the more entrenched societal and cultural stereotypes that root unequal pay not in the workforce, but in the home.
The low hanging fruit of gender pay inequality is making it easier—or in some cases, possible—for women who are paid less than their male colleagues to bring a discrimination claim against their employer. It seems like an obvious point, but in practice women rarely know how their salaries compare to their coworkers.
This lack of information proved fatal to the claims of Lilly Ledbetter, who was hired in 1979 as an area manager by Goodyear Tire & Rubber Co. Ledbetter began work at the same salary as her male coworkers, but after nineteen years at Goodyear, she received an anonymous note telling her that she was paid 87 percent of the salary of the lowest paid male area manager and 71 percent of the highest paid male area manager. Ledbetter might have argued that her pay was lower because her managers discriminated against her as the only female area manager, but the Supreme Court held [PDF] that the initial alleged discrimination took place at the beginning of her employment with Goodyear. Because she didn't file within 180 days of that first allegedly discriminatory decision, her claim had expired. Even though she felt the effects of that discrimination for two decades of employment, the Supreme Court said that she had missed her moment to challenge her employer's illegal discrimination.
The first bill that President Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009 [PDF], declaring that the statute of limitations for lawsuits challenging discriminatory wages is reset with each paycheck. Five years later, the administration's focus is still on the preliminary steps of simply gathering and exchanging information about paychecks, so that fewer women discover they have spent years receiving a lower paycheck. The Paycheck Fairness Act, for example, would amend the Fair Labor Standards Act [PDF] to prohibit employers from punishing employees who share information about their salaries, require the Department of Labor to gather data about wages in order to allow further analysis of disparities along genderand racial lines, and establish civil liability for discriminatory employers. Despite Obama's call to consider the bill, Senate Republicans did not allow it to even come up for debate. That left Obama's two executive actions as the only tangible moves toward gender pay equality, effectively establishing for federal contractors what the Paycheck Fairness Act would do for all employers.
The president's proposals would help to eliminate the gender pay gap, and the ability of female employees to fight discrimination through legal means is a key component of any broader equality movement. But gender pay inequality is also the product of more complex and more deeply rooted issues that stretch far beyond traditional employment discrimination claims. The gender pay gap, as with so many problems of inequality, begins at home.
A common refrain in arguments against attempts to address pay inequality through legal means is that to the extent a gender pay gap exists, it is because women choose to earn less money: they choose to enter lower-paid professions and they take time off from the workplace to have children. As the Republican National Committee put it, "There's a disparity not because female engineers are making less than male engineers at the same company with comparable experience. The disparity exists because a female social worker makes less than a male engineer." As an initial matter, even controlling for virtually every variable such as children never actually eliminates the chasm between male and female earnings—it merely narrows it. But it is undoubtedly true that women are concentrated in lower-paid jobs—a recent White House report [PDF] found that increasing the minimum wage to $10.10, as President Obama has proposed, would instantly eliminate about 5 percent of the gender pay gap.
But what about the higher paid jobs? Rather than the RNC's example of an engineer, why not look at the legal industry. One recent study found that female lawyers make 82 percent of the salary of their male colleagues. The famed face time requirement in law firms exacerbates the problem. The first year out of law school, male and female attorneys are paid almost the same amount. But as the years go on, the women's wages grow at a much slower rate than their male colleagues. Some women may take time off to start a family, or request more flexible work hours to accommodate family responsibilities. But as many female law students are warned, this truly places them on the mommy track. The more hours a lawyer works, the higher his hourly salary—so an attorney working a 40-hour week is not paid half of what an attorney working an 80-hour week gets. This means every second a female attorney takes away from work, even if she is simply using the paltry maternity leave most legal employers give, causes exponential damage to her paycheck.
One could argue, of course, that this simply proves that women choose to earn less. Women have children, they take on more household responsibilities and they prioritize private duty over wage-earning in a way that demonstrates it is simply female preferences at work. The larger problem with this argument, however, is that it assumes that women have free agency in allocating public and private responsibilities, particularly if they share their life with another person.
The lesson of gender pay inequality, in other words, for some is to choose a better husband. Phyllis Schlafly argued recently that "The best way to improve economic prospects for women is to improve job prospects for the men in their lives, even if that means increasing the so-called pay gap." Both she and the notorious Princeton Mom lecture women that they should choose a husband who will make more money than their wife—as Schlafly put it, women prefer to have a higher-earning partner, men prefer to be the higher earning partner. (Needless to say, in Schlafly's vision of the world, LGBTQ people have either disappeared or don't care how much money they make.)
Most people think of salary negotiation as taking place between employee and employer. Schlafly is right, however, that some of the most important negotiation takes place within marriage. A first-level negotiation is whether to have children: male and female married lawyers without children have almost equal salaries. Once a female attorney decides to have children, the magnitude of harm it will cause to her salary depends on her husband. If she makes more money than her husband, the injury to her paycheck is minimized. If her husband's income is in the top 30 percent of national earnings distributions, her salary never recovers. Economic power, in other words, is not simply measured in the marketplace. Gender pay inequality is circular: a woman with less economic power in household bargaining will be more likely to take time off from work to fulfill household responsibilities, and will consequently earn even less. While Obama's marking of Equal Pay Day proposed a few small steps toward gender equality, the law has not yet begun to acknowledge, much less address, the force of the family and the laws, norms and stereotypes that affect it.
Dara Purvis is a professor at the Pennsylvania State School of Law. Her expertise includes family law, contracts, feminist legal theory, and sexuality and the law. She is particularly interested in the intersection between gender stereotypes and the law. In her most recent work, she examines gendered impacts of the law and proposes neutralizing reforms, most recently in the context of how the law defines parenthood.
Suggested citation: Dara Purvis, Equal Pay Begins At Home, JURIST - Forum, May 10, 2014, http://jurist.org/forum/2014/05/dara-purvis-equal-pay.php
This article was prepared for publication by Maria Coladonato, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to her at