Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average eighty cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only seventy-one cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was thirty-five years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in women’s hours worked and time off for childbearing, and in minority workers’ education and experience levels), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation—meaning the unequal distribution of women and racial minorities across job fields—and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities’ work, and what, if anything, can antidiscrimination law do to respond?
Existing federal law prohibits sex and race discrimination in pay, but requires an employee to provide proof of an employer’s intent to discriminate or a nearly identical “comparator” of a different sex or race performing “equal work” who is paid more. Current proposals for reform focus on narrowing an employer’s defenses in a lawsuit alleging unequal pay. This approach, while likely to improve plaintiffs’ successes in court, misses the forest for the trees. Leaving the definition of “equal work” untouched in threshold requirements for legal protection fails to account for the workforce segregation and gender and racial stereotyping at the root of much of the current pay gaps.
This Article explores how the limitations of existing law allow the gender and racial pay gaps to persist and analyzes proposals for improvement. To do so, the Article contrasts current reform efforts with alternatives, including the historical movement in the 1980s for “comparable worth” legislation and its echo in recently enacted laws in three states requiring equal pay for “substantially similar” or “comparable work.” Given the difficulty of enacting legislative change at the federal level, the Article then proposes a reframing of the concept of “equal work” in existing law by drawing on examples of broader definitions used to set pay in some union, government, and private sector employment contexts. Debunking the outdated criticism that strong equal pay laws force employers to “compare apples and oranges” and framing the comparison of “equal work” more broadly are essential to overcoming the impacts of occupational segregation and stereotyping on pay, and to closing the pay gaps.
77 Md. L. Rev. 581 (2018)