Last spring I had the honor of talking about equal pay legislation with Stephanie Thomas on her podcast The Proactive Employer. My counterpart and the star of the show was Lilly Ledbetter.
Yes. That Lilly Ledbetter. Lilly Ledbetter of the Lilly Ledbetter Fair Pay Act. The Lilly Ledbetter who wore a red suit and stood beside President Obama when he signed the Fair Pay Act into law. Ms. Ledbetter had recently published her book, Grace and Grit: My Fight for Fairness and Equal Pay at Goodyear and Beyond.
Yes, I am serious! The Lilly Ledbetter who is standing right behind the President!
Stephanie is always great, and Ms. Ledbetter herself was a gracious and charming lady, and our half hour flew right by. If she hadn't lived two states away from me, I would have invited her over for dinner.
Ms. Ledbetter strongly believes that pay discrimination against women is rampant. And a women's advocacy group has recently come out with a study showing that, between 2011 and 2012, women's relative pay has dropped from about 82 cents for each dollar that men earn to only about 81 cents on the male dollar.
At the same time, we have extremely well-compensated female super-executives like Sheryl Sandberg of Facebook saying that women aren't as successful, not because men are holding them back, but because women don't want success enough, or something like that, and Marissa Mayer, CEO of Yahoo, saying she's not a feminist and abolishing telecommuting for her employees while building herself a baby nursery next door to her office. (Sisterhood is powerful, baby! This is what we fought for!)
THE PRICE WAS WRONG: I had reported earlier on model Brandi Cochran's $7.7 million verdict in a pregnancy discrimination lawsuit against the long-running TV game show The Price Is Right. The trial judge has now granted the show's motion for a new trial, saying that he gave an erroneous jury instruction according to a California Supreme Court decision that was issued after the trial. I'll continue to keep you posted on this and all daytime-TV-related employment law.
So, with all apologies to Lilly Ledbetter, as we approach the sixth anniversary of the Supreme Court's decision saying that Ms. Ledbetter's case against Goodyear was untimely (a decision that Congress overruled by passing the Ledbetter Fair Pay Act), and the 50th anniversary of the Equal Pay Act, and as the Office of Federal Contract Compliance Programs says in so many words that it's going to keep on scrutinizing contractors' pay in every way possible until it finds a violation, I'm going to be contrary: here are five reasons why I think the "gender pay gap" is mostly baloney.
Res ipsa loquitur.
1. The "X cents on the dollar" argument is fallacious. This statistic measures all women in the workplace against all men in the workplace. It takes nothing into account except sex and pay. That's it. It doesn't control for anything else that might affect a person's pay, such as educational level, years in the workforce, skill or experience level, willingness to travel or do "dirty" work, or anything. Just sex and pay. So it doesn't tell you much of anything about discrimination. At most, it's the first piece in a 2,000-piece jigsaw puzzle. Here are a few of the other 1,999 pieces:
Problem solved! My work here is done!
2. Statistically speaking, men are disproportionately willing to work heavy, dirty, dangerous jobs in bad conditions with long or inconvenient hours. Because these jobs totally stink aren't very pleasant, companies are sometimes willing to pay quite a lot to anyone who is willing to do them. Companies don't have to do that with nice, clean, 9-to-5, Monday-through-Friday office jobs, or even "pink-collar" jobs, which might have inconvenient hours and be stressful in some ways but don't usually involve danger or heavy lifting.
3. Statistically speaking, women are more likely to start their work lives later and interrupt their work lives. (Remember, we are talking "statistically.") The work force is still full of women my age and older, who unlike today's young women, may not have jumped right into their chosen careers, often because we were working at dead-end jobs for a few years while our husbands went to professional school or threw themselves headlong into their own careers. And/or we were having babies. (In my own case, I didn't even start law school until I was 30 and already had one child. And I'm not that unusual.) Even if we were working, we quit* when we had babies. Our husbands never did -- male "moms" are a relatively new phenomenon.
*Quit working outside the home. Moms and dads who stay home, of course, do a ton of work.
So, if you're young, remember that the "pay equity" stats include us as well as you, and we have a big pay gap that usually was not a result of discrimination by employers but a result of family choices we made at various stages of our lives. In other words, our choices are bringing down the average for the whole group of working women. Don't you feel better now? :-)
4. In the most recent recession, the pay gap narrowed somewhat, and do you know why? It's because women were employed while men were unemployed. (Statistically speaking, of course.) That's right -- men were disproportionately affected by the last recession. You may recall that they even called it a "mancession." Most of the jobs that went away were "men's" jobs -- construction, heavy manufacturing, etc. This narrowed the gender pay gap because women were making a little bit of money while many men were not making any money. If the pay gap really is widening again, I hope it's because some of those poor unemployed men have started to find jobs.
5. Even when they're in the workforce, women disproportionately treat their jobs as "secondary" to their spouses' so that they'll have time to devote to their families. (Statistically speaking again, of course.) Just look around you. Count up the women you know who take off work when their kids are sick, assume primary responsibility for taking care of elderly or sick relatives (including their in-laws), move when their spouses get transferred, and say they want a job that they can "forget about" when they go home at night. Now count up the men you know who do these things.
Some might say taking good care of them is as rewarding a career as any.
My guess is that everyone's circle of acquaintances will include a relatively large number of women, and a relatively small number of men, who do. Now -- tell me who do you think is probably going to make more money at work? Would it be the people who consider their jobs "secondary" to the jobs of their spouses, or would it be the people who consider their jobs to be the "primary" jobs in the family? Do I really have to ask? Of course not. And, if that's the way those women want it, then what's the problem?
I can tell you what the problem isn't: it isn't employment discrimination.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Kelly McGrath
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010