Abstract

Several things have been said about the Equal Pay Act (EPA) in recent years--not many of them have been very nice. The Equal Pay Act has been described as "broken" and suffering from an "identity crisis." Another scholar has claimed that the EPA fails to prevent wage discrimination for women in professional and leadership positions, stating that: "[i]n short, the EPA is increasingly becoming an empty promise, unworkable and ineffective to remedy wage discrimination for many women." Some authors assert that winning a case under the EPA is "nearly impossible."

It is clear that the EPA is failing (and maybe even flailing), but what is less than clear is why the EPA is suffering. Several hypotheses have been alleged... Many have blamed the failure of the EPA on courts' willingness to allow employers to use market excuses to defend pay discrimination. Because of this trust in the neutrality of the market, many employers succeed in defending pay discrimination claims. They justify paying women less than men, sometimes substantially less, for doing the same work, and their defense is allowed because courts deem the market to be neutral and unbiased.

But what if the market is not neutral? What if the free market system is a "suspect enterprise"? Our goal is to prove that the free market system (as it relates to certain pay decisions) is not neutral and unbiased but rather permeated with sex discrimination. We will use social science literature to demonstrate that the "market" is biased in two fundamental ways. First, unconscious discrimination and gender schemas cause employers to value male employees more than female employees for reasons unrelated to skill or productivity... Second, we will use social science literature to demonstrate that the gender schemas that cause employers to evaluate women more poorly also affect women's view of themselves.

We argue that because good evidence exists that pay decisions are often fraught with bias, we should not perpetuate that bias by allowing employers to rely on tainted pay decisions or bias in negotiation when setting the salaries of men and women performing equal work.

This abstract has been adapted from the authors' introduction.

Document Type

Article

Publication Date

Summer 2011

Publication Information

12 Georgetown Journal of Gender and the Law 159-211 (2011)

Download

Share

COinS