Compliance Requires Inspection: the Failure of Gender Equal Pay Efforts in the United States

• Citation: Vol. 68 No. 2
• Publication year: 2017

Compliance Requires Inspection: The Failure of Gender Equal Pay Efforts in the United States

Renalia DuBose

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Compliance Requires Inspection: The Failure of Gender Equal Pay Efforts in the United States

by Renalia DuBose^*

Introduction

On Friday, January 29, 2016, President Barack Obama expanded a previous executive order by requiring the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government.¹ That previous executive order was the April 8, 2014 Executive Order 13665 entitled Non-Retaliation for Disclosure of Compensation Information² and was designed to amend the September 24, 1965 Executive Order 11246 entitled Equal Employment Opportunity³ by President Lyndon Johnson.⁴ Executive Order 13665 was issued to require transparency concerning compensation among private entities doing business with the federal government and to prohibit discrimination against employees working for these entities when they inquire about compensation information.⁵ President Obama expanded Executive Order 13665 to combat the wage gap between men and women. While the gap has narrowed slightly over the last two years, the median annual wage for a woman

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working full-time at the beginning of 2016 is 79% of that of a man who works full-time.⁶

The U.S. Chamber of Commerce has characterized the reporting requirements of the expanded Executive Order 13665 as being "too burdensome."⁷ The Author of this Article believes the burdensome nature of the new reporting requirements should not be the focus of the gender wage gap issue; rather, the focus should center on past federal laws that should have remedied the wage gap. Further, the Author believes that laws designed to remedy the gender wage gap without rigorous inspection requirements produce minimal results.

Passed after the Civil War, the Fourteenth Amendment⁸ was to be a guarantee of rights to citizens of the United States, but not for women, as this Amendment was the first time the word "male" was inserted into the United States Constitution.⁹ The amendment states:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States . . . to the whole number of male citizens twenty-one years of age in such State.¹⁰

In the post-Fourteenth Amendment United States, Americans struggled to understand the true meaning of the words "equal protection of the laws," and that struggle became apparent during the second half of the twentieth century when Americans pressed their expectation that the federal government would protect its citizens from racial, ethnic, and gender discrimination.¹¹ In spite of the Equal Protection Clause of the

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Fourteenth Amendment, the road to significant federal legislation addressing gender pay inequality did not come for almost a century.¹² During the early decades of the twentieth century, women comprised less than 24% of the United States workforce; however, that number had increased to 37% of the civilian workforce by 1945 due to the shortage of male civilian workers caused by World War II.¹³ The dramatic effects of World War II cannot be overstated in that, between 1940 and 1945, the percentage of women in the workforce rose from 27% to 37%, and almost one-fourth of all married women worked outside the home.¹⁴

I. Federal Attempts at Closing the Gender Wage Gap

A. The Women's Equal Pay Act of 1945

The first piece of national legislation proposed to address gender pay inequality was the Women's Equal Pay Act of 1945.¹⁵ In spite of the increase in women working outside the home during World War II, Congress was not ready to address the gender wage gap, as evidenced by the failure of the proposed legislation.¹⁶ Congress debated the idea of equal pay for equal work because it wanted to ensure employers did not reduce wages to the detriment of men upon their return to the civilian workforce after World War II, not in an effort to equalize wages to the benefit of women.¹⁷ This failed legislation contained the phrase "comparable work," meaning that wages were to be established based on the difficulty of the jobs rather than the gender of the worker. The War Labor Board supported the notion of equal pay for equal work as evidenced by their established policies of "equal pay . . . for women" and "comparable quality and quantity" of work for men and women.¹⁸ Nevertheless, the Women's Equal Pay Act of 1945 was never signed into law; federal and civilian policies allowed employers to replace female workers with male workers after World War II.¹⁹ After World War II, newspapers routinely published

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classified advertisements separately for men and women, even for identical jobs, and employers reclassified jobs offering lower pay for women for jobs identical to those for men, in spite of the Equal Protection Clause of the Fourteenth Amendment.²⁰

B. The Equal Pay Act of 1963

For almost two decades after the failure of the Women's Equal Pay Act of 1945, numerous attempts were made but failed to secure federal legislation to address the gender wage gap in the United States.²¹ Entities of national notoriety, such as the U.S. Chamber of Commerce and the National Retail Merchants Association, justified the lower wages paid to women with explanations including the claim that women were more expensive to employ due to higher absenteeism and higher turnover rates.²² Additionally, because two-thirds of the households in the United States had breadwinning husbands and stay-at-home wives in the 1950s, attitudes dictated that women's income was not necessary to sustain households.²³ In 1944, Esther Peterson, a wife, teacher, and mother of four children, became the Amalgamated Clothing Workers Union's first lobbyist in Washington, D.C., and she was assigned to newly-elected Representative John F. Kennedy.²⁴ During her tenure, she worked to raise the minimum wage from 40 cents to 75 cents and to increase the number of industries covered by the Fair Labor Standards Act (FLSA)²⁵ to ensure minimum wage and overtime compliance for workers. In 1961, President Kennedy appointed Peterson to head the Women's Bureau of the Department of Labor, where she established the President's Commission on the Status of Women.²⁶ The Commission's final report²⁷ became the driving force that led to the eventual passage of federal legislation to address the

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gender wage gap in the United States: the Equal Pay Act of 1963.²⁸ Peterson submitted the draft of the Equal Pay Act to Congress on behalf of President Kennedy in February 1963.²⁹

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.³⁰

Gaining approval of the Equal Pay Act was difficult, and the initial draft was greatly scrutinized. The initial draft described "comparable work," but the term was later changed to "equal work," meaning, "jobs requiring equal skill, effort, and responsibility, and which are performed under similar working conditions."³¹ In addition, the Equal Pay Act prohibited employers from reducing the wages of men when they were found to be in violation of the Act.³² Due to concerns within the business communities throughout the country, Congress decided to make the Equal Pay Act an amendment to the FSLA, rather than a separate bill, because businesses were more accustomed to the investigative procedures and defined penalties of the FSLA.³³ Executive, administrative, and professional employees are not covered by FSLA requirements; therefore, these three groups of employees did not enjoy the protection of the Equal Pay Act.³⁴ Later, however, the Educational Amendments of 1972³⁵ made the provisions of the Equal Pay Act applicable to executive, administrative,

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and professional employees.³⁶ President Kennedy described the Equal Pay Act as "a significant step forward" but conceded that "much remains to be done to achieve full equality of economic opportunity."³⁷ On June 10, 1963, the day President Kennedy signed the Equal Pay Act, women earned 59 cents for every dollar earned by men in the United States.³⁸ On January 29, 2016, the day President Obama announced the expansion of Executive Order 13665 to require the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government, women earned 79 cents for every dollar earned by men in the United States.³⁹

C. The Civil Rights Act of 1964: Title VII

The Civil Rights Act of 1964⁴⁰ was the next major federal legislation that was intended to address equal treatment of women in the...