The trouble with pay equity is that it costs money. So no matter what remedy you espouse for the inequities between salaries paid to men and salaries paid to women, you are bound to run into problems because sooner or later principles are going to run into practicalities.
This is precisely what happened in the recent ruling from the 9th Circuit Court of Appeals, which ruled in favor of the State of Washington in what has become known as a "landmark comparable worth case." Part of what made it very much a landmark was that the State of Washington was facing hundreds of millions in back pay damages as well as remedial damages to some 15,000 state employes. Most worked in job categories dominated by women and they were (you guessed it) paid some 20 percent less than men in jobs that required similar knowledge and skills, mental demands, accountability and working conditions. The state had commissioned a study back in 1974 that found the disparity, other studies were done in 1976 and 1980.
In 1980, the American Federation of State County and Municipal Employees filed suit, claiming that the state was violating Title VII's ban on sex discrimination in employment. On Dec. 14, 1983, U.S. District Court Judge Jack Tanner found that it had, and ordered back pay, commencing in September 1979. Among the points he made in his ruling was that studies ordered by the state had shown discrimination yet the state had dragged its feet in remedying the situation. In 1983, after the lawsuit was instigated, the state legislature appropriated money to achieve comparable worth over a 10-year period.
The 9th Circuit overturned Tanner's decision in a ruling that held, among other things, that having commissioned a study, the State of Washington was not committed "to implement a new system of compensation based on comparable worth as defined by the study." The ruling made repeated references to the free market system and concluded: "Absent a showing of discriminatory motive, which has not been made here, the law does not permit the federal courts to interfere in the market based system for the compensation of Washington's employes."
Both rulings are textbook examples of how you can make the law do what you want it to do. AFSCME has said it will appeal, so the story of Washington state goes on. Efforts began this month to reach an out-of-court settlement, and the state has earmarked $41 million toward that goal.
Meanwhile, the fact of the matter is that people in predominantly female jobs are paid less than people in jobs of similar skills and so forth that are predominantly held by men. The same "male only" and "female only" newspaper advertisements presented in the Washington state case to document a history of entrenched discrimination were used by other governments and by private industry as recently as 1973.
Efforts are under way in both the House and the Senate to pass a law that would require an 18-month, $2.5 million study of the federal compensation system to determine whether women and minorities are being underpaid in job categories in which they predominate. The federal government is the largest employer in the nation.
The bill is being supported by a wide variety of women's organizations, including the American Nurses Association, and numerous unions, such as the American Federation of Government Workers, and AFSCME, whose president, Gerald McEntee, pointed out at a press conference that it has been 60 years since the federal government conducted a comprehensive review of its compensation system.
Comparable worth has been used as a tool to remedy sex discrimination in the work force in San Jose, San Francisco and New York state, and in private industry. The most successful efforts to implement it have been through labor negotiations, rather than lawsuits. Winn Newman, who argued the Washington state case for AFSCME, makes the point that Minnesota and Iowa are phasing in comparable worth, without facing huge back pay awards that would come from lawsuits. "If employers want to save on back pay and litigation costs, then it's clearly cheaper to negotiate it."
Some employers may take comfort in the Washington state ruling and comparable worth will remain a controversial remedy for pay discrimination. But the overriding point is that pay discrimination has been held to be illegal, and when you find the majority of jobs held by women being paid less than the majority of jobs held by men, then it's a pretty safe bet that didn't happen by accident. When it came to women and minorities, the free market operated on the cheap.