Equal pay for equal work has been the law in the United States for over 50 years. Both Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 prohibit employers from paying women less than men for equal work. When Congress passed these important protections in the 1960s, women made about 59 cents for every dollar a man made. Over 50 years later, the wage gap has closed by only 21 cents. In 2015, women overall made 80 cents on the dollar compared to men. The wage gap is wider for women of color. African American women make 63 cents and Hispanic women make only 54 cents for every dollar white men earn. Women also disproportionately fill lower-wage occupations and are paid less than men even in majority-women professions such as child care. Greater education and higher incomes for women don’t alleviate the problem; the gender wage gap is largest in occupations with higher-than-median earnings. In fact, no factor other than gender can fully explain the pay disparities between men and women.
Pay secrecy is a major factor in the persistence of the wage gap. Clients often come to us knowing that they have been treated worse than their male colleagues in a variety of other ways: they’re not given credit for their work and are excluded from social events with the boss; they’re required to perform administrative tasks and not given the resources they need to succeed; they hear comments about their appearance and others’ expectations about their roles as women. Indeed, all of that conduct can be evidence of discrimination. However, despite the gender wage gap existing in almost every job category, our clients often don’t know how much their male colleagues earn, and that is by design. Most employers do not share employee pay information, and many employers explicitly prohibit employees from discussing their pay. In order to root out gender discrimination in all its forms, women need information, and they don’t have it.
In what would have been a major step in data collection aimed at closing the pay gap, the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing Title VII and other anti-discrimination laws, announced in September 2016 that it intended to collect summary pay data by gender, race, and ethnicity on the EEO-1 form. Employers with 100 or more employees have annually submitted the EEO-1 form, which includes employees’ race and gender data by job category, to the EEOC for over 50 years. The new requirements, which were scheduled to begin in March 2018, would have simply added pay information to the same form employers have been filling out for years. It would have been the first collection of employer-specific pay data by race and gender in the United States.
However, on August 29, 2017, the Office of Management and Budget (OMB) issued a memorandum placing an immediate stay on the EEOC’s pay data collection. OMB’s memorandum left open the possibility of a revised reporting requirement, but that is unlikely. Even if the EEOC is eventually authorized to engage in some form of pay data collection, the appropriations bill currently before the House does not include funding for the EEOC’s pay data collection. Moreover, the House recently voted against an amendment that would have provided the necessary funding. While not yet demolished, one of the most promising advancements in the government’s efforts to fight the wage gap has been stalled and is not likely to be revived in the coming years.
While the government’s pay data collection is on hold, employees are still protected by and can seek to remedy workplace discrimination under local, state, and federal laws. If you suspect that you have experienced pay discrimination, or other discriminatory conduct in the workplace, you should consult with an employment lawyer. Sanford Heisler Sharp, LLP has skilled employment attorneys in New York, Washington, D.C., San Francisco, San Diego, and Nashville.