In January 2009, President Obama signaled his commitment to improving the lives of working women with the signing of the Lilly Ledbetter Fair Pay Restoration Act. By signing this act into law, President Obama signed a significant shift in the view of American polity toward the status of women in the workplace. While this change is significant in the upward mobility of women, only a small portion of women in the workforce will benefit from this new law.
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Many explanations have been offered by scholars for gender-wage disparity. Pay disparities have often been attributed to the segregation of women in certain female-dominated occupations, disparities in professional skills, education, and experience, and differences in family status, as well as the role of industry and wage structure. What that said, evidence still suggests that at least part of this gender pay gap is due to discrimination which may be subtle and even unconscious. While the pay disparity exists in nearly every traditional field, jobs associated with male roles continue to be better paid than jobs associated with roles that are considered traditionally female even though these jobs may often require the same skill level. Women dominate jobs in nursing, home health assistance, child care, teaching, cleaning, and food preparation; most of which replace things that women historically have performed in the home for free. While women are making strides in our white collar sections of our economy, working-class America has not yet benefited from this economic and cultural power shift.
Jobs held mainly by women are paid at rates that on average are 20% less than those equivalent jobs held mainly by men. Improvements in pay for women have been related to a greater presence of women in the labor force, rising educational attainment, and the movement into professional and managerial jobs, but there still continues to be an unexplained gender pay gap against women. Today, women with the same amount of education and experience earn 81 percent of what men do; although, this is better than the 60 percent they earned in 1980. This pay gap has persisted and remained relatively consistent for the past 2 decades.
Historical Relevance & Social Welfare Policies
Recent research indicates women now make up almost half of the American work force and earn 60% of college degrees in America. Empowerment alone is not entirely responsible for this revolution. Politics has played a big role in the movement of women into the work force. A number of policies in the 1960s seemingly targeted gender discrimination in the labor market. Legislative efforts that have attempted to address this problem include the Equal Pay Act of 1963, Title IV of the Civil Rights Act of 1964 and subsequent amendments, the Family and Medical Leave Act of 1993 (FMLA), and the Lilly Ledbetter Fair Pay Acts of 2009 and 2012. These changes along with the rise of the service sector and the decline in manufacturing have supported and encouraged the entrance of women into the American workforce, but progress has not been uniform as seen in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).
The Equal Pay Act
On June 10, 1963, the Equal Pay Act (EPA) was passed by Congress dictating that women and men must receive equal pay for equal work on the recommendation of President John F. Kennedy’s Commission on the Status of Women. Under the mindset that men were the heads of households and therefore where the primary income producer in families, women had previously been paid less when employed in identical jobs. Regardless of the fact that in many homes women were considered the breadwinners for reasons ranging from death or disability of a spouse, divorce, and/or single parenthood. The EPA prohibits gender-based pay discrimination among employees within the same work place who do “substantially equal” work. Although gender can no longer be viewed as a drawback, demonstrable differences in seniority, merit, the quality or quantity of work, and/or other considerations might merit different pay can be used if proven. The statute of limitations for filing a suit is 2 or 3 three years, depending on whether the discriminatory act is intentional. In order to recover under the act, a woman must prove that an employer paid higher wages to men, male and female employees conduct an equal amount of work that requires equal skill, effort, and responsibility, and men and women performed the work under similar working conditions. The act establishes four main defenses for employers. An employer may pay a male employee more than a female employee if the employer can establish that payment is based upon a seniority system, a merit system, a system whereby earnings are based upon the quantity and quality of production by the employees, or a differential based upon any other factor other than the sex of the employees. While the first three of these defenses have been the subjects of litigation, the fourth exception if often litigated more frequently.
The Civil Rights Act of 1964
The Civil Rights Act of 1964 is considered our nation’s benchmark legislation. Signed into law on July 2, 1964, the Civil Rights Act paved the way for future anti-discrimination legislation and President Lyndon Johnson asserted his commitment to President Kennedy’s legislative agenda, Passage of the Act ended the application of Jim Crow laws, which had been previously upheld by the Supreme Court in the 1896 case Plessy v. Ferguson. Congress eventually expanded the Civil Rights Act to strengthen enforcement of these fundamental civil rights. These changes were needed to strengthen the original proposal submitted by President Kennedy in response to the racially-motivated violence across the South which occurred during tumultuous summer of 1963. Title VII of the 1964 Civil Rights Act and subsequent amendments prohibits employment discrimination on the basis of sex in a broader set of categories, including hiring, promotion, and other conditions of employment. It requires filing a complaint with the Equal Employment Opportunity Commission within 180 days after an intentional discriminatory act. Although the inclusion of the word “sex” in the original draft of this 1964 Act was considered a joke, this inclusion has become the basis for most gender-based discrimination policy in the United States. As a result of fears regarding the impact of this legislation on his predecessor, congress adopted the Bennett Amendment into bill shortly before its passage in 1964. “Interested parties” feared that an employee filing suit under Title IV could file a wage discrimination case without the need to prove “equal pay for equal work” as required under the EPA. The Bennett Amendment provides that an employer may pay his employees different wages based on gender if the provisions of the Equal Pay Act authorize such differentiation.
Executive Order #11246
On September 24, 1965, President Lyndon Johnson issued Executive Order #11246. Generally considered the nation’s first affirmative action order, Executive Order #11246 requires companies receiving federal construction contracts to ensure equality in the hiring of minorities. The order was amended in 1967 to include gender discrimination.
The Family Medical Leave Act of 1993
The Family and Medical Leave Act of 1993 (FMLA) was signed into law by President Bill Clinton on February 5, 1993. FMLA is considered a labor standard classifying requirements for eligible employers and also a major milestone in the legal support of family life. FMLA recognizes that family life events have an impact on the workplace and requires the workplace to accommodate those events to provide job protection. Entitlements for employees who meet FMLA eligibility requirements include job protection and unpaid leave for a qualified medical and family reason. Eligible employees may take up to 12 work weeks of unpaid leave during any 12 month period for the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child. An FMLA-eligible employee is an employee who has been in the business at least 12 months and worked at least 1,250 hours over the past 12 months. Work must be done at a location where the company employs 50 or more employees within 75 miles. FMLA does not apply to workers in businesses with fewer than 50 employees, part-time workers who have worked fewer than 1,250 hours within the 12 months preceding the leave and a paid vacation, workers who need time off to care for seriously ill relatives other than parents, workers who need time off to recover from short-term or common illness like a cold, or to care for a family member with a short-term illness such as child, and workers who need time off for routine medical care, such as check-ups.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) dictates that families receiving public assistance under the Temporary Assistance for Needy Families program take personal responsibility for their low-income lives and that paid work is essential to moving the family out of poverty. The PRWORA represents the change in the welfare system that no longer permitted poor families to receive assistance while staying at home with children. With the passage of PRWORA, Congress essentially ended single mothers’ entitlement to income support by emphasizing paid employment.
The Lily Ledbetter Fair Pay Restoration Act
In 2009, President Obama signed the Lily Ledbetter Fair Pay Restoration Act, which allows victims of pay discrimination to file a complaint with the government against their employer within 180 days of their last paycheck, not as previously stated the first paycheck. Victims were previously allowed 180 days from the date of the first unfair paycheck.
Interpretation of Such Policies
The 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act combined are thought to settle the matter of equal pay in law. In 1963, when the Equal Pay Act was passed, full-time working women were paid 59 cents on average for every dollar paid to men. This means it took 49 years for the wage gap to close just 20 cents; a rate of less than half a penny a year.  In a 2007 U.S. Census Bureau report in, median pay for women is less than of men in each and every one of the 20 industries and 25 occupation groups surveyed. In fact, men working in female-dominated occupations still tend to earn more than women working in those same occupations. According to the Institute for Women’s Policy Research, if equal pay for women were instituted immediately across the board, it would result in an annual $319 billion gain nationally for women and their families (in 2008 dollars).  Over her working life, a typical woman could expect to gain a total of $210,000 in additional income if equal pay were the norm (these numbers include part-time workers). 
The Equal Pay Act and Title VII of the Civil Rights Act are important laws, but they are hard to enforce, and legal cases are extremely difficult to prove and win. Part of the problem is that many women can be underpaid without knowing it. Many companies continue to make it taboo to discuss salaries even though in some cases these policies are unfair and/or sometimes unlawful. In addition, without knowing what a job truly pays, women can devalue themselves when negotiating a new salary. Suing is also not a practical remedy for women since awards are limited under the EPA to 3 years’ worth of pay, which may make it difficult to find a lawyer to accept the case. In addition, the EPA does not allow participation in class action lawsuits for wage discrimination, and since discrimination is almost never in the form of a smoking gun, women still continue to suffer from “the glass ceiling and old boy’s network.” Recent court decisions and settlements reveal women earning low wages, faced with systemic discrimination in hiring, pay, promotions, or working conditions. In 2011, the Office of Federal Contract Compliance Programs (OFCCP) settled lawsuits against 3 employers in low-wage industries for systemic sex discrimination.  Although this civil action is promising, the Supreme Court has recognized the “fear or retaliation leads many victims of pay discrimination to remain silent.” Low-wage workers face substantial risk of retaliation by standing up to an employer to challenge discrimination and often remain silent. Unavailable resources also make options for low-wage workers difficult. Women who complain are labeled troublemakers which may follow them as they seek other employment. Employers often fight back aggressively and seek to ruin the credibility of the employee as they seek to defend the company. Women are often subjected to questioning about their sexual history as well as gynecologic medical records in efforts to intimidate them in court. Legal cases can be extremely difficult to prove and win since enforcement of the laws is complaint-driven and, unfortunately, most of the information needed to prove a complaint is held by employers. Pursuing an equal pay case under these circumstances can be devastating to the personal lives and finances of the plaintiffs.
The first Executive Orders addressing discrimination in private sector grew out of the unique labor market conditions created by America’s entry into World War II. The basis for these orders was felt to fall under the President’s authority to provide for national defense. A significant national commitment was signaled by the Johnson administration to social policy. By issuing Executive Order #11246, President Johnson signaled his belief that to truly level the playing field affirmative measures were required to undo the consequences of the historic exclusion of minorities and women from many areas of the workplace. The President’s authority to issue this Order derived from his authority to ensure that government procurement was conducted in an economical manner. The relationship between the supply of labor and these Executive Orders is evident in that the eradication of discrimination is empirically related to economy and efficiency in government. As a byproduct, research has determined the effects of affirmative action on the gender pay gap estimating that employment of women increased somewhat faster in contractor firms as a result of the effects of affirmative action, but women have seen greater employment opportunities in the economy as a whole most particularly in the public sector. In the private sector or those contractors that are not subject to affirmative action provisions, affirmative action laws and regulations are few and far between. Under Federal law, only 2 types of private-sector employers are required to implement affirmative action plans; those that have federal contracts or subcontracts in excess of $50,000 and those that have at least 50 employees. This translates to 1 in 4 American workers holding jobs in the private sector covered by mandatory federal affirmative action programs. The role of these policy changes cannot be ruled out in both the increase in the gender pay disparity.
Coverage under the Family and Medical Leave Act of 1993 is far from universal and many low-wage, single-income workers simply cannot afford to take time-off from work without pay. Low-wage workers in particular would benefit from expanded paid leave policies as they are less likely to be covered by the federal policy since they are considered the working poor and are in greater need of pay during time-off from work for major life events. Women make up 59% of the low wage service-related work force with nearly two-thirds of those earning minimum wages. Women in low-wage positions often have significant demands on their time including, but not limited to holding down multiple jobs, raising children, pursing education, and training. Many single-mother families live paycheck-to-paycheck and may fear being easily replaced by their employers. Lack of information about better paying jobs or options available to them, lack of transportation, and the inability of low-wage female workers in single income families to easily recover from job loss all factor heavily in a decision to challenge discrimination or remain silent.
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The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 was at the time considered a “reassertion of America’s work ethic.” This Act single-handedly increased the poverty rate of low-wage families, most of them headed by single mothers. This legislation was passed in the middle of the strongest labor market in decades, especially for low-wage work, and was followed by sharp increases in the employment of unmarried mothers. The hope was that as former single welfare mothers entered the labor market they would eventually climb the job ladder; although, research has shown that wage profiles for less-educated workers remain stagnant even if earnings profiles slope upward. Female workers with low levels of education not only typically earn less; they are also hit hard by the wage gap. Less-educated, low-wage workers experience little wage growth while working for the same employer and only limited gain. Their experience is also less meaningful than for that of more-educated workers when moving to a new employer. The occupational segregation of men and women into different jobs in the service sector explains the single-largest portion of the gender pay gap, 49.3 percent. Many jobs that women have historically held by women are underpaid when compared to men’s jobs that require similar levels of skill. A traditionally male job can earn more a traditionally female job. It is not that the male job has a much higher level of skills than the female job, but that our society values these jobs differently and this is a choice we make. Jobs considered traditionally female have been systemically undervalued for such a long time that we think it is natural, but in fact this is an ongoing legacy of past discrimination. 
Finally, The Lilly Ledbetter Fair Pay Restoration Act provides women with a critical tool to challenge discriminatory pay practices, but it will not change pay disparity. The Act amends Title VII and restores the law that existed before the Supreme Court’s 2007 decision in the Ledbetter case with regard to the timing of legal challenges. With a record number of women currently participating in the workforce, wage discrimination hurts the majority of American families by compromising their economic security today and their retirement security tomorrow. Rising employment rates have forced an unprecedented number of women into the position of primary breadwinners for their families. This alone makes pay equity even more critical. While the Ledbetter Act does not end pay disparity, it brings women one step closure to making real progress in pay disparity. Stronger incentives are needed for employers to follow the law, women need to be empowered to negotiate for equal pay, strengthen federal outreach, and education, and enforcement efforts such as those contained in the now failed Paycheck Fairness Act are needed. Discrimination would then be deterred due to strong penalties for equal pay violations as well as retaliation against workers who ask about wage practices or disclose their own wages.
The consequences of the wage gap are both widespread and numerous. When women are paid less than men, the means by which they support themselves and their families is compromised. The number of single-family households has risen dramatically over the past 4 decades. The increase in the number of single-mother families can be correlated to the increase in child poverty in the United States. Unsurprisingly, single parent families headed by women are nearly twice as likely as single parent families headed by men to live below the poverty level. Although most children reared in mother-only households do well, there may be adverse consequences for others. By earning less, women will automatically experience the disadvantage of a less stable economic status and may be less likely to question their wage status due to fear of poverty.
The wage gap disparity is also visible in fringe benefits, which currently make up about 30 percent of total compensation. Lower wages means lower lifetime earnings resulting in lower pension benefits upon retirement. The lack of coverage or lower benefit levels may not be a problem for some women, since they receive benefits through a spouse, but for other women, lack of adequate health or pension benefits from their job is a serious problem. As with wages, the gap in fringe benefits is thought to be related to differences between men and women in human capital and job characteristics. Some studies contribute differences in human capital to motherhood and parenting responsibilities since women are largely responsible for childrearing in our society. The correlation is that women are felt to less likely than men to gain work experience and skills, and therefore, are less likely to qualify for high-paying jobs; however, studies have demonstrated that when controlling for sex-based differences in work hours, work interruptions, and part-time work, childless women earn no more than mothers and single women earned no more than married women. Thus, these wage disparities are not exclusively attributable to motherhood, and factors other than unequal sharing in childrearing duties must be at play. Supporting studies have found that in narrow sections of students graduating from the same law school with the same amount of experience, the human capital argument failed to explain the gender-based wage disparities in the American labor force.
Another consideration for the wage disparity can be found in the role of industry and wage structure. This discrimination clearly starts the second women begin their first job, and follows them no matter where they go or what they do. New graduates not only make less, but continue to make less with each subsequent degree and the gap actually widens as they progress. Women make less than men no matter what industry or occupation they enter. This can be attributed to the decline in blue-collar jobs where women are under-represented. The rise of women in blue collar jobs has benefited women in that traditionally men have been more likely to be union members than women. Union representation has historically helped to increase the gender pay gap, but the share of unionized workers who are female has increased as unions have grown in certain public sector and service-related occupations that have a greater share of female workers. This in itself has played a relatively small role in the declining gender pay gap.
Public sector and service-related occupations remain crucial for women. Women have historically been overrepresented in public-sector employment. Public sector jobs generally pay more than jobs in the private sector raising the average pay for women in our contemporary economy, but recent decisions by many state and local governments to respond to diminished revenues and budget shortfalls by cutting public-sector jobs have had substantial economic effects on women. Although state and local public-sector workers have significantly higher levels of education than their private-sector peers, they are consistently underpaid relative to similar private-sector workers in similar jobs, and the disproportionate share of women and minorities working in state and local government has also translated into higher rates of job loss for both groups in these sectors. Affirmative action has played a significant role in public sector jobs, but this has mainly benefited white women, many of which are not coming from the lower-class labor market. According to the United States Labor Department, the primary beneficiaries of affirmative action are white women. The Department of Labor estimated that 6 million women workers are in higher occupational classifications today than they would have been without affirmative action policies.
The empowerment of women is considered to be one of the greatest changes in the past 50 years. This has been manifested in equal rights acts, changes in social welfare legislation, and changes in employment legislation such as the Lilly Ledbetter Act. The changes have all in one way or another corresponded with the rises in the labor market that have both supported and encouraged the entrance of women and minorities into the American workforce. Improvements in pay for women have been related to a greater presence of women in the labor force, rising education attainment, and the movement into professional and managerial jobs, but pay disparity still persists.
Historically, legislation favoring the elimination of discrimination in the workforce has been used also to support economic growth. This would suggest that the driving factor behind this legislation is not discrimination or gender parity, but capitalism/the economy. Executive Order #11246 and The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 are examples of this. The impact of these Acts on low-wage female workers is evident. More low-wage single-mother households are living in poverty at this time than ever before. In fact, there has been no legislation to date to protect part-time and contingent workers at all and their numbers are growing. These workers are not eligible for time-and-a-half overtime, minimum wage protections, and they have very little job security. Most low-wage single-mothers are also not covered by the Family Medical Leave Act.
The impacts of the Equal Pay Act of 1963, Title IV of the Civil Rights Act of 1964 and its subsequent amendments, as well as the Lilly Ledbetter Fair Pay Acts of 2009 and 2012, are largely felt to be in the public sector, which is subjected to monitoring and oversight by the EEOC, and in the private sector in the form of blue collar jobs which are dominated by unions. Unions provide better benefit protection, safety protection, and job security. Lilly Ledbetter herself benefit greatly from protection in her job due to her union. Studies have shown that women who have had the benefit of being supported by union membership experience significantly less pay disparity. Low-wage workers often find it hard to unionize, especially in the private sector as this is often discouraged by employers. Workers are often bullied and intimidated to discourage talk of union membership. Strong unions in these sheltered areas would greatly benefit low-wage workers.
Better enforcement of existing laws and regulations is also needed as well as stronger laws such as the Paycheck Fairness Act to address this issue. Lawsuits will not have a significant impact on pay disparity as individual wage discrimination cases are very expensive to pursue and difficult to argue. Private cases also do not have an important impact on the labor market. Class-action lawsuits are rare and are usually based on many employees and one employer or a few employers, and are generally not feasible in wage disparity cases. As previously mention, they are forbidden under the EPA. Finally, the fact that this problem is not concentrated in one area or agency makes it difficult to assess. Change is needed from outside these organizations. Federal standards should be adopted to specifically address pay inequality at all levels of government and even in the private sector.
American Civil Liberties Union, www.aclu.com.
The ACLU takes an active role in defending the freedoms granted to American citizens by our Constitution and laws of the United States in this country. The ACLU brings many discrimination cases on behalf of workers each year, testifies in front of Congress on behalf of women’s issues, and works hard to lobby for women’s rights in the workplace.
National Committee on Pay Equity, http://www.pay-equity.org/.
The National Committee on Pay Equity is a coalition of organizations working to eliminate sex-based and race-based pay discrimination to achieve pay equity.
The American Association of University Women, http://www.aauw.org
The American Association of University Women advances equality for women and girls through legislation, research, advocacy, and philanthropy. Its mission is a community to break through economic and education barriers so that women have a fair chance.
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