The History and Law of
Labor, Discrimination, and Immigration
Through a Feminist Lens
This is my final paper for my 2012-2013 Justice at Work course, split into 3 parts for my blog.
We have discussed the concept of our “lens” quite a bit this year, and how our personal lenses impact our understanding of the world around us. As we have moved through the readings, films, and discussions over the year, I have sometimes felt confronted or defensive because of the information presented. This is where the lens I utilize has enhanced my learning experience, as I rely on my personal experiences as well as my understanding of feminism in order to both process and relate to the information in question.
Clearly, feminism is not my sole lens, nor even the only lens I have relied on to process information. My LDS upbringing provided me with the lens of distrust for mainstream historical accounts, as such accounts neglected the Mormon influence on American history. When I left my childhood faith and began identifying as atheist, I began to view the world through the lens of understanding that just because I want something to be true does not actually make it a true thing. New information can be shocking and difficult to hear, but just because an idea confronts my understanding of the world does not negate its value. Being misdiagnosed with Bipolar depression as a teenager and my involvement in the mental health community equipped me with the lens to better understand the experience of discrimination and microaggressions.
These lenses, and many others I have either not identified or am not aware of, interact to influence my reactions to and understanding of the material presented throughout the year. I choose to concentrate on the intersection of feminism with Justice at Work because it is the lens I most actively and consciously relied on in order to connect with the material, language, theories, and issues that have been presented over the year.
Further, the lens of feminism allowed me to connect with the material on a more personal level, by focusing in on aspects of the material we were only able to briefly touch on in class. In fall quarter, I looked at the relationship of feminism and labor law, and how the promise of the Equal Pay Act has been implemented. In winter quarter, I examined the role of sex-plus discrimination and how it led to the burgeoning legal field of family responsibilities discrimination. For spring quarter, I will look at the history of immigration and worker rights as they apply to domestic work.
Fall 2012: Feminism and Labor Law
Equal Pay for Equal Work
Congress passed an unprecedented and landmark piece of legislation 50 years ago. Nothing like it existed in prior United States legislation. The Equal Pay Act of 1963 (EPA) made it illegal to pay men and women different wages for performing similar jobs under similar working conditions.
One year later, Congress passed the Civil Rights Act of 1964, which made it unlawful to discriminate on the basis of race, religion, color, or sex. Title VII of the Civil Rights Act specifically addresses discrimination in employment. Title VII makes it unlawful for employers to discriminate because of race, religion, color, or sex in the terms, conditions, and privileges of employment. Congress incorporated the EPA’s affirmative defenses into Title VII, which states that an employee who claims they have experienced pay discrimination due to their sex must show evidence that different wages were actually paid to opposite sex employees; that the employees in question were performing similar duties under similar working conditions at the time; and that the positions in question required equivalent levels of skill, effort, and responsibility.
Taken together, the Equal Pay Act and Title VII should protect the covered categories of employee from discrimination in wages, promotions, transfers, or job assignments on the basis of sex. Instead, these anti-discrimination measures have faced such strong resistance from employers and business interests that parity in wages has not yet been achieved, more than 50 years after the passage of the EPA.
The EPA was preceded by the National War Labor Board (NWLB), which was re-instituted during World War II and ran from 1942 to 1946. During World War II, women were entering the work force in greater numbers while the men were away fighting.
Although women made up a greater part of the workforce, they were still being paid less than their male counterparts. The NWLB supported the unprecedented policy of equal pay for equal work because of the many negative impacts unequal wages had not only on the worker, but also on their financial situation and the community at large. In 1942, the NWLB urged employers to make, “adjustments which equalize wage or salary rates paid to females with the rates paid to males for comparable quality and quantity of work on the same or similar operations.” (Jaffee)
Unfortunately, since the NWLB was an advisory committee, backed by neither legislation nor the enforcement of law, they had little long-term success in implementing their recommendations. In fact, few employers heeded the NWLB’s call during the war, and after the war ended, the majority of women were summarily dismissed in order to create employment opportunities for the returning veterans. The briefly shining light of equality in working conditions, personified by the iconic image of Rosie the Riveter, was also dimmed.
Up until the 1960’s, want ads for men and women were categorized according to gender. Higher-paying jobs ran almost exclusively under the male category listings, while the lower paying and administrative “pink collar” jobs ran under the female category listings. In some cases, identical jobs would be advertised to both men and women, but with differing pay scales. From 1950-1960, full-time female workers earned an average of 59-64 cents for every dollar men earned in the same job. (The Wage Gap)
The EPA, though intended as a step toward income parity between men and women, was not comprehensive. It exempted women in administrative, professional, salesperson, or executive capacities from coverage, as well as domestic workers.
Nine years later, the Education Amendment of 1972 expanded the promise and protection of equal pay to women in white-collar professions by amending the Fair Labor Standards Act (FLSA) to exclude the EPA from the professional workers exemption of the FLSA. This action extended the coverage of the EPA to white collar working women, but continued to exclude domestic and agricultural labor.
Since the EPA was passed, many employers have cited apparent loopholes in the law in order to defend disparate wages. One such loophole was closed in the Schultz v. Wheaton Glass Co. case of 1970, when the court ruled that jobs need to be “substantially equal,” but not “identical” to fall under the protection of the EPA. This essentially means that if an employer hires two employees to do the same job, one male and one female, but gives the male a different job title than the female, they cannot pay based on the job title. They must pay based on the work itself.
In 1974, Corning Glass Works tried to defend paying their male employees more by arguing that men would not work for the low rates women would accept. This idea of a “going market rate” was deemed in violation of the EPA by the court’s decision in Corning Glass Works v. Brennan, and another loophole was closed.
Although the courts have frequently upheld the EPA, they have also ruled in direct contradiction to the intent and scope of the Act. A recent example is the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co.. The plaintiff, Lilly Ledbetter, was employed by Goodyear. After 19 years with the company, she was nearing retirement when she learned she was being paid significantly less than her male co-workers who held the same position. Ledbetter filed suit for pay discrimination under the EPA and Title VII.
The District Court found in favor of Goodyear on the EPA claim, stating that the EPA allows for pay differences based on merit. Ledbetter also said she had been evaluated unfairly due to her sex, and these unfair evaluations had contributed to the discriminatory pay. The District Court allowed this complaint under Title VII to proceed to trial.
Goodyear responded by stating their evaluations were non-discriminatory and focused only on worker competence, but the jury found in favor of Ledbetter after evaluating the evidence and testimonies. The District Court awarded her back pay and damages for the lost wages.
Goodyear appealed, arguing that because the 180-day statute of limitations had passed, Ledbetter’s case was void. The Eleventh Circuit U.S. Court of Appeals agreed with Goodyear, and reversed the District Court decision. Ledbetter then sought a writ of certiorari, which the Supreme Court granted. After hearing her appeal and Goodyear’s defense, the Supreme Court found in favor of Goodyear.
In his opinion, Justice Alito said Ledbetter could have and should have complained of the unequal pay within 180 days of receiving her first paycheck. He reasoned that because she had not complained and had continued to accept the lower-wage paychecks from Goodyear for the next 19 years, her complaint was invalid.
In an unusual move, Justice Ginsburg read her dissent from the bench. She felt the Court’s interpretation was “cramped,” and incompatible with the remedial purpose of the EPA. Ginsburg argued that pay discrimination tends to occur piecemeal over large periods of time, and the 180-day statute of limitations for discrimination complaints should not be applied as the Court was interpreting it. She also argued that pay discrimination differs from other forms of employment discrimination, as information about coworkers’ wages is usually unavailable for comparison. It is therefore extremely difficult to recognize pay discrepancies within the allotted 180-day time frame. Justice Ginsburg was supported by Justices Stevens, Souter, and Breyer in her dissent.
In 2007, the Lilly Ledbetter Fair Pay Act was proposed to address the loophole exploited by Goodyear and signed into law in 2009. This Act revised existing law to say that if a present act of discrimination pertains, prior acts outside of the 180-statute of limitations for pay discrimination can be incorporated into the claim — essentially, the 180-day statute of limitations restarts with each paycheck.
Employers will always exploit loopholes, and the EPA still boasts a rather substantial loophole: An employer can defend their discriminatory pay practices if they can prove the disparity exists for a “legitimate factor” other than gender, such as experience, training, or education. Despite the apparently neutral language, this leaves a rather wide gap in the EPA through which an unscrupulous employer can squeeze a significant amount of savings at the cost of their female employees.
This is, without a doubt, a major contributor to why women in America are paid less on average than men. In 1960, women were paid 60 cents for every dollar men earned. After the passage of EPA and Title VII, the gender wage gap began decreasing by about half a cent per year, but persists even today. The National Partnership for Women and Families (NPWF) recently released their 2013 reports on the gender wage gap. Full-time American working women are paid a national average of 77 cents for every dollar paid to men; a 23 percent income gap. This only skims the surface of the vast income disparities between men and women in America as the NPWF explained:
“The wage gap varies by state and metropolitan area. In Wyoming, for example, women are paid 67 cents for every dollar paid to men, while in Vermont, women are paid 87 cents for every dollar. The wage gap persists in the country’s largest cities. It is greatest in the Seattle area, where women are paid just 73 cents for every dollar paid to men.” (“Fact Sheet” April)
Another factor affecting the gender wage gap is, unsurprisingly, race. On average, Black women in America are paid 64 cents for every dollar paid to white, non-Latino men. American Latinas are paid just 55 cents for every dollar paid to white, non-Latino men. The Simple Truth, a publication released by The American Association of University Women (AAUW), further elaborates on the impact of race and gender on economic inequality:
“. . . within racial/ethnic groups, African American and Hispanic or Latina women experienced a smaller gender pay gap compared with men in the same group than did white and Asian American women. . . . Because white men are the largest demographic in the labor force, they are often used [as a benchmark]. . . .”(Corbett)
Corbett goes on to elaborate that in comparison with white men, Latina women experience the largest pay gap at 59 percent of white male wages, while the salaries of Asian women show the smallest gender pay gap at 88 percent. Corbett also explains that intra-racial gender pay gaps is entirely due to the fact that Black and Latino men are paid substantially less than white men.
In other words, we still have a long way to go before achieving the promise of the Equal Pay Act of 1964. Despite the initial incremental gender wage gap improvements post-EPA, it has become increasingly apparent that wage parity will not happen any time soon without legislation to address existing loopholes in the EPA. In 2009 and 2012, the Paycheck Fairness Act, which would uphold the EPA but add the requirement that it is the burden of the employer to maintain documentation supporting pay discrepancies, was proposed in Congress. Each time it was voted down. In January 2013, it was introduced once more to the Congressional Committee, and is currently under review. (H.R. 438)