“Comparable worth” – Apples & Oranges?

California  has taken a big leap in an effort to lessen the “gender gap”. The numbers show a gap between what men earn on average, and what women earn, on average. Nationwide, female wage, on average, is 78% of the male wage. In California, the difference is a little less: the female average is 84% of that of men;  so, the “gap” is 16%. There has been a lot of debate about these numbers and what they mean. Some people point to the numbers as manifest proof that women are paid less than men. Others respond that these numbers fail to take into account that women and men still do different jobs. Look at the courts. There are many more women judges than there used to be (yeah!); but, still, there are substantially more men on the bench than women. And, there are nowadays some men who work in administrative positions, jobs that used to be almost entirely female (yeah to that development, too). But, there are still a lot more women working at the court in administrative positions than men. But, the judges make about $180,000.00 per year. The clerks make less than half that. So, the “gender gap” in the courts is much greater (over 50%) than the “gap” overall (16%). Much the same is still true in law offices, but there is a twist. When I was in law school (I graduated in 1980), there were very few women in the school. Maybe 10 out of 200.  Nowadays, law school student bodies are roughly half and half (yeah!). Nonetheless, it takes a long time of equal student bodies to equate to equal staffing levels. Law offices still feature more men than women as lawyers; and that is particularly true among the ranks of older attorneys, because the trend towards more women in law schools was gradual and recent. Conversely, the support staff of secretaries and paralegals and receptionists are, generally, heavily female, although, again, there are more men now occupying these positions (yeah!). But, attorneys, you will not be surprised to hear, make more money than secretaries.  Like three or four times, or more. So, if you looked at “men v. women” in law firms, you’d see, in most cases, a “wage gap” of LOTS more than 16%.

Courts, and law firms, and doctors’ offices, are extreme examples. A lot of the “gender gap”, though, is more subtle than that. In the 1980’s, there was litigation in which women sued employer’s under the Equal Pay Act, but the claims were that women occupied traditionally female occupations (such as secretaries) while men occupied traditionally male dominated jobs (such as maintenance workers), and the complaint was that the people changing the light bulbs (men) made more than the people typing the letters (women). The plaintiffs claimed this was against the law because the law required “equal pay for COMPARABLE work”. How did they compare secretaries to maintenance staff?  Well, easy: they both worked in the office. They both had, on average, about the same levels of education. The job REQUIREMENTS for both jobs were basically the same (a high school diploma). And, the argument went, the jobs had comparable WORTH – They both performed support functions tangential to the main task that was necessary. The plaintiffs lost those cases, because, ultimately, the courts decided that the Equal Pay Act required equal pay for EQUAL work – so, people working in the same workplace, doing the same job, should be paid the same; but, the courts said, we can’t compare apples and oranges; the law doesn’t require employers to pay maintenance workers the same as secretaries, even if the two jobs were “dominated” by different genders.

Now, California has passed a new law. The express purpose of the law is to address the gender gap. Labor Code Section 1197,5 now provides:

 (a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:
(1) The wage differential is based upon one or more of the following factors:
(A) A seniority system.
(B) A merit system.
(C) A system that measures earnings by quantity or quality of production.
(D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.
This is going to be big trouble for California employers. The secretaries are going to be banging on the courts’ doors again, claiming that being a secretary in an office is “substantially similar” to being a maintenance worker when you consider “a composite of skill, effort and responsibility,” given that they are performed under “similar” working conditions. This language is loose enough to compare apples and oranges. Then the employer is going to have to meet its burden of proof to justify the pay disparities, pay disparities that really were never the result of rationale decisions, but often the result of tradition. Why should a secretary make less than a maintenance worker? Why should a woman who works the front desk make less than the guy who rotates the tires? Explanations that may seem obvious to one person may carry no weight at all with a woman who earns 84 cents on the dollar. This problem is NOT going away.

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