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The “Gender Gap” in Pay Persists

The “Gender Gap” in Pay Persists

The country has made significant progress in narrowing the gender wage gap in recent years; however, a wage gap persists. Despite the fact that women have earned more college degrees at every level than men for several years. In 2017, women earned 82% of what men earned, according to a Pew Research Center analysis of median hourly earnings of both full-and part-time workers in the United States. By comparison, the Census Bureau found that full-time, year-round working women earned 80% of what their male counterparts earned in 2016. As bad as these numbers are, they are far better than the 36 cent pay gap in 1980.

The reasons for the gender wage gap are multi-faceted, but one of the reasons involves the type of jobs typically held by women. Irrespective of the level of qualification, jobs predominately done by women pay less on average than jobs predominantly done by men.  Women have in recent decades made significant movement into jobs and occupations previously held almost exclusively by men, and this has helped narrow the gap. At the same time, however, there are some occupations—like construction jobs—that remain heavily male dominated. This occupational segregation is a major contributor to the gender pay gap.

Pay discrimination is also a factor contributing to the pay gap, even though pay discrimination based on sex has long been illegal. Both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 prohibit paying a person less for the same work because of gender. The difficulty comes in proving a case. For example, the Equal Pay Act offers affirmative defenses to employers to overcome a discrimination charge. Specifically, an employer must demonstrate that the difference in pay is justified by a seniority system, a merit system, a pay system based on quantity or quality of output, and finally, any other factor other than sex. This last “catch all” category allows for some creative arguments by employers. In addition, just obtaining the salary information to demonstrate the pay differential can be quite difficult, particularly given that employees are discouraged from discussing their pay.

Title VII also has its difficulties for a plaintiff in bringing a gender pay discrimination case. Some of those were addressed in the Lilly Ledbetter Fair Pay Act, named after a woman who discovered that her employer was paying her less than men doing exactly the same job. Lilly Ledbetter took her pay discrimination case all the way to the U.S. Supreme Court which ruled in 2007 that claims like hers had to be filed within 180 days of an employer’s decision to pay a worker less—even if she did not learn about the unfair pay until years after the discrimination began. To ensure that people can effectively challenge unequal pay, the Lilly Ledbetter Act amended the Civil Rights Act of 1964 to permit complaints to be filed within 180 days of a discriminatory paycheck. Furthermore, that 180 days resets after every such paycheck is issued. The Lilly Ledbetter Act was signed by President Obama in 2009, and it is retroactive to May 28, 2007, the day before the Supreme Court issued its ruling in Ledbetter’s case.

Despite the gains women have made in the workforce, the gender pay gap persists. Women and men should be a part of the fight for equal pay, as it affects us all.

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