H.R Paycheck Fairness Act: more harm than good
On April 15, the House of Representatives passed H.R.7 the Paycheck Fairness Act along party lines. Noting that women make 82 cents to a dollar compared to men, and women of color make even less, the Left blasted Conservatives for not supporting equal pay for women. This law has the potential to do a lot of things but closing the gender wage gap is not one of them. Conservatives were right to vote nay. If Congress wants to show they believe in gender equality, they must do better than H.R. 5 the Equality Act and now H.R. 7 the Paycheck Fairness Act.
The purposes of H.R. 7 are better described as ensuring LGBTQ pay equality; making unconscious stereotype discrimination illegal; complicating an employer’s abilities to accommodate market forces and collect wage data; and funding training on salary negotiations.
Gender pay and discrimination. Women were guaranteed equal pay for equal work beginning with the Equal Pay Act of 1963 and it has done its job. Today, pay differences are rarely due to gender discrimination. This is evident in EEOC pay discrimination claims. In the past ten years there has been an annual average of 1,017 claims, of which an average of 64 have been categorized as having a reasonable cause for discrimination.
If it’s not gender discrimination, why are US women compared to men, on average, only paid 82 cents, white women 79 cents, black women 63 cents, Latinas 55 cents, and Asian women 85 cents. Pay is most significantly impacted, between and within sexes, by choice of occupations which commonly correlates to educational level and field of study. For example, among women, Asian and white women disproportionately attain STEM degrees in the high paying fields of engineering, computer science and math at both the bachelor and advanced degree levels. In general, white and Asian women are more likely to graduate with a bachelor’s degree than blacks and Latinas by a margin of 4-10%. Women, in general, dominate lower paying supportive, and community and social service occupations. Men dominate high-paying STEM positions, professional occupations like lawyers and physicians, and higher-level management positions. If women are choosing to study and work in fields with lower pay, this legislation will do nothing to change that.
About half of mothers also take extended time off, for an average period of two years, to care for children. Less experience and seniority impacts salary. There are a range of reasons for women leaving the workforce, but among the most powerful is a desire to be fully committed to raising their children. Young mothers also often prioritize flexibility over salary. All of these decisions affect the gender pay gap and they won’t be remedied with H.R. 7 or any other law.
LGBTQ pay equality. The 1963 Equal Pay Act assumed the biological definition for sex. H.R.7 does not. It redefines sex to include: “sex stereotypes, pregnancy, sexual orientation, gender identity, and sex characteristics.” This does a number of things, including changing the law to specifically enumerate pay equality for people that do not identify as cisgender heterosexuals. Eliminating any discrimination here will be uncomplicated when the culprit is overt discrimination.
Stereotype discrimination. Overt stereotype discrimination rarely affects biological women because it is illegal and has been since 1964. Today, it is more likely to affect transgender women, but recently there has been a host of changes to workplace policies and practices to eliminate overt discrimination against transgenders, because this too is illegal. This Act attempts to make unconscious (covert) stereotype discrimination illegal. This will not help to close the wage gap. What is more likely is the creation of a real quagmire for employers and the courts. This will occur for a couple of reasons. First, there are no legal or generally accepted definitions for different stereotypes for genders across races/ethnicities, or for L, G, B, T, or Q. Weighing in on this previously, courts have noted the impossibility of evaluating covert stereotype discrimination claims for all of the distinct population groups. For example, Asian, black, Latina, and white women that are cisgender heterosexuals, lesbian, bisexual and transgender with origins in different nations. Second, this Act will put employers in the untenable position of defining and enforcing polices on what people can and cannot think about their colleagues. It will also put the EEOC and the legal system into the business of speculating on unconscious thoughts, evaluating claims akin to she thought - he thought, and determining punishments for unintentional behaviors.
Prohibiting discrimination based on stereotypes, in combination with increased civil penalties for violators is also likely to motivate employers to unconsciously limit their exposure to people prone to claims of stereotype discrimination including, women of all colors and creeds, and LGBTQ.
Accommodating market forces. Some provisions in the Act will make it harder for male- and female-led employers to respond to market forces. When supply and demand call for higher wages to fill some positions, or some employees are paid more because they won’t accept wages lower than they currently earn, this will no longer be considered legally justified for a pay differential. This can limit the ability of employers to fill positions in demand. The Act will also make it harder for employers to compensate employees for beneficial skills that are not strictly necessary to perform a specific job, but that do add value to an employer.
Training on negotiations. Calling for the government to fund training for girls and women in negotiating salary could have benefits because women are relatively poor negotiators. However, this type of training can and has backfired and instigated biases that limited career opportunities. This is because the reasons women are relatively poor negotiators has less to do with training and more to do with upbringing and social conditioning. Resolving this is quite complicated.
Data collection. To ensure compliance, the Act calls on employers to collect data on compensation “and other employment data according to “national origin, race, and sex.” The collection of data on “sex” will minimally necessitate that employers ask/require employees to declare their pronouns and sexual orientations, areas where there should be a reasonable expectation of privacy. In a nation with vast immigrant diversity, the collection of data on national origins could be quite burdensome, and for employees this too can be seen as a violation of privacy.
This Act broadcasts a dearth of knowledge on why there is a gender wage gap. As a consequence, the myriad of solutions enumerated in the Act will be ineffective at closing the gap. Worse, it has the real potential to impede equality in the workplace for the very people it is intended to help. Conservatives should heed the opportunity to demonstrate that they understand the reasons there are wage gaps and to present effective measures that can be taken to lessen the gap. Top of mind should be two initiatives. One, grasping why women choose to study for and work in lower paying professions. Two, understanding the reasons there is a gender gap in senior leadership.