Moving Women Forward
On the 50th Anniversary of
Title VII of the Civil Rights Act
A Three-Part Series
Part Three: A Gender Wage
Gap That Won’t Close
Page 1
Acknowledgements
This Report benefitted from the dedication of many individuals. The principal authors were Equal Rights Advocates
staff members Noreen Farrell, Jennifer Reisch, Monali Sheth, Joelle Emerson, and Mia Munro. We also thank Jocelyn
Sperling and Irma Herrera for outstanding editorial suggestions and drafting assistance.
Equal Rights Advocates thanks and acknowledges a Blue Ribbon Panel of national experts who contributed invaluably
to the direction of the report in its early stages and offered editorial suggestions. They are:
Herma Hill Kay, Professor of Law at University of California Berkeley School of Law
Joanna Grossman, Professor of Law at Hofstra University School of Law
Katherine M. Kimpel, Sanford Heisler LLP
Jeannette Cox, Professor of Law at University of Dayton School of Law
Linda Hamilton Krieger, Professor of Law at University of Hawaii at Manoa William S. Richardson School of Law
Leslye Orloff, Professor of Law and Director of the National Immigrant Women’s Advocacy Project at American
University Washington College of Law
Monica Ramirez, former Acting Deputy Director of Centro de los Derechos del Migrante, Inc.
William Tamayo, U.S. Equal Employment Opportunity Commission
Ariane Hegewisch, Institute for Women’s Policy Research
Roberta Steele, National Employment Lawyers Association
Equal Rights Advocates thanks the institutional funders who generously support our work and the movement for
social justice in this country, including the Ford Foundation, the NoVo Foundation, the Levi Strauss Foundation,
the Skadden Fellowship Foundation, the San Francisco Foundation, Common Counsel Foundation, Rosenberg
Foundation, and the Women’s Foundation of California. We also thank the Restaurant Opportunities Centers United
for its partnership with ERA through the Access to Gender Justice Project to end sex discrimination and unfair
treatment in the restaurant industry.
Cover photo courtesy of Victoria Hamlin, Tradeswomen Inc.
©2014 Equal Rights Advocates. All rights reserved.
Page 2
Moving Women Forward: Executive Summary
“
“
All I want is to be human, and American, and
have all the same rights, and I will shut up.
Martha Griffiths, former member of the U.S. House of Representatives from Michigan and a chief proponent
of adding sex as a protected class to Title VII of the Civil Rights Act of 1964.
When Martha Griffiths, a member of the House of
Representatives, fiercely advocated for a last-minute
amendment to Title VII of the Civil Rights Act of 1964 to
include a prohibition of workplace discrimination based
on sex,1 the world was a different place. Women were
excluded outright from many workplaces. Employers
could lawfully pay women less for the same work and fire
them once their pregnancies became obvious. Sexual
harassment was blatant. Marriage and weight gain
and getting older were grounds for termination in some
industries, for women anyway.
The amendment adding “sex” as a protected category
to Title VII, just two days before Congress voted on the
bill, was a tremendous opportunity for the women’s
movement. Fifty years after passage of the Civil Rights
Act of 1964, we ask:
Has Title VII of the Civil Rights Act of
1964 Improved Women’s Economic
Opportunity and Security?
Equal Rights Advocates takes a hard look at that question
in this Report. Founded in 1974, ERA grew up with the
Civil Rights Act of 1964. Over our 40-year history, ERA
has relied on Title VII to pursue groundbreaking cases to
end sex discrimination in the workplace. Our early equal
protection pregnancy discrimination cases before the U.S.
Supreme Court, like Geduldig v. Aiello (1974),2 buoyed
passage of an amendment to Title VII to confirm the law’s
prohibition against pregnancy discrimination as a form of
sex discrimination (the Pregnancy Discrimination Act of
1978).3 ERA also led cases to combat workplace sexual
harassment (Miller v. Bank of America),4 the exclusion of
women from male-dominated fields like firefighting (Davis
v. San Francisco),5 and pay and promotion discrimination
(Dukes v. Wal-Mart Stores).6 ERA has fielded calls from
tens of thousands of women across the country with
concerns about discrimination and harassment at work.
The stories of our many clients, recent data from the
Equal Employment Opportunity Commission, and input
from the nation’s top gender equity experts all informed
this Report.
The answer to whether Title VII has improved women’s
economic opportunities and security depends on which
women are the subject of the question. This Report
focuses on low-wage women workers and women
of color. Troubling statistics drive this focus. Women
are nearly two-thirds of minimum wage workers in this
country.7 They are nearly twice as likely as men to be
employed in occupations that pay poverty wages.8
African-American women and Latinas are even more likely
than women as a whole to be employed in lower-paying
service occupations and significantly more likely to be
among the working poor.9 Women with children remain
concentrated in low-wage jobs and are paid substantially
less than fathers or men and women who are not
parents.10
This Report is a three-part series that examines:
sexual harassment and violence, discrimination against
pregnant workers and working mothers, and the gender
wage gap.
The first obstacle examined in this Report – sexual
harassment and violence in the workplace – has
been largely ignored as an economic issue despite its
devastating impact on a large number of working women.
Sexual harassment compromises the economic security
of women workers because women who are harassed
are often denied or deterred from promotions, fired, or
Page 3
Moving Women Forward: Executive Summary
THREE PERSISTENT BARRIERS TO EQUAL OPPORTUNITY FOR WOMEN:
sexual harassment and violence
discrimination against pregnant workers and working mothers
the gender wage gap
forced to leave their jobs, regardless of whether they file
a complaint.11 And millions of women workers who rely
on customer tips to support themselves and their families
(particularly in states where the tipped minimum wage is
just $2.13 per hour) too often face the impossible choice
of enduring sexual harassment or losing income critical to
their survival.12
The second part of this Report examines discrimination
and lack of accommodation for pregnant workers and
caregivers. It is a problem that is only getting worse.
The number of pregnant women who are fired or laid
off has actually grown over the past two decades13
and is especially high for African-American women and
Latinas.14 Pregnant women and new mothers working in
low-wage jobs are heavily burdened by discrimination.15
Low-wage workers are filing a disproportionate
number of pregnancy discrimination charges,16 and the
discrimination these women face has long-term negative
effects on their earning capacity and economic stability.17
The third installment of this Report addresses the gender
wage gap – a glaring and measurable example of
persistent sex discrimination in the American workforce.
The wage gap between male and female workers has
remained stagnant for over a decade and closed by only
about 14 cents in the last five decades.18 Women working
full-time earn on average 78 cents for every dollar paid
to male workers, and women of color fare even worse.
Despite laws prohibiting discrimination, most women and
men work in different fields that are highly segregated by
gender, and “women’s work” continues to be worth less
than work done mostly by men.
How Has Title VII Succeeded? How
Has It Failed?
The cases, stories, and data examined in this Report
reveal a law that has bright spots as a tool in the
movement for women’s equality, but one that has its
blind spots, too. In many ways, advocates seized the
opportunity presented by the last-minute addition to Title
VII prohibiting sex discrimination. We have enforced the
law to protect and advance opportunities for women
and used it to successfully challenge sex discrimination
in hiring, pay, promotion, and other working conditions.
Title VII can be credited, in part, for the radical increase
in women’s and mothers’ participation in the workforce
and labor market. Women now make up nearly half the
workforce and have entered almost every profession.
But today, as Dukes v. Wal-Mart Stores and subsequent
retail cases demonstrate, entire industries remain
infected by sex discrimination and other unfair practices.
Today, ERA represents women shipyard workers in
Norfolk, Virginia who suffer from blatant discrimination
and harassment in their workplace, where they are
outnumbered by men 16 to 1. Many are women of color
who have been denied raises and higher-paying jobs
despite decades of service and exemplary qualifications.
It is a workplace where women are commonly called
“whores” and other slurs, and where supervisors and
senior managers alike participate in or turn a blind eye to
this rampant sexual harassment.
Why Are We Lagging in 2015?
Title VII was not designed to address many of the
barriers to economic security for women that still exist
today, such as a lack of paid leave and poor access
to affordable, quality child care. Moreover, while we
have enjoyed some tremendous victories in the courts,
judicial misinterpretations of Title VII have held back
progress for many women workers in significant ways.
Fundamental obstacles also remain to even accessing
the protections of Title VII for far too many workers,
leading to widespread under-enforcement in low-wage
industries and occupations. Few women know their rights
or can access a qualified lawyer to represent them when
they need legal help. Many are fearful of retaliation or are
too financially vulnerable to challenge discrimination at all.
Others have been stopped by attacks on workers’ ability
to challenge discriminatory practices collectively through
class actions.
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Moving Women Forward: Executive Summary
These gaps and obstacles pose serious threats to the
economic security of women in this country. And while
we are heartened by the efforts of partners nationwide
to enforce Title VII, including for women of color and
low-wage women workers, we cannot wait another
50 years for workplace equality. A recent poll shows
that more than 70 percent of Americans believe that
women’s contributions to our national economy are
essential.19 A significant 90 percent of American voters
favor policies that would help women get equal pay for
equal work and raise wages for women and families.20
This polling data reflects the consensus documented
in a number of reports released over the past year:
Americans want women to be treated fairly in the
workplace and will support policies to even the playing
field for working women and their families.
How Will We Seize on Today’s
Moment of Opportunity for the
Women’s Movement?
Fifty years after Title VII’s historic passage, the time
has come once again to revolutionize the judicial
system to better protect women workers. This Report’s
three sections detail specific recommendations for
policymakers, administrative agencies, advocates,
and employers to get this process started. These
recommendations include suggestions for improving
the enforcement of Title VII and to correct flagrant
misinterpretation of the law’s provisions. We also make
recommendations on how to fill Title VII’s gaps through
a series of policy initiatives that take a holistic approach
to improving the economic security of women in this
country today.
This bold and comprehensive approach to boost
and equalize economic opportunity and security for
women is gaining traction. In 2013, U.S. House of
Representatives Minority Leader Nancy Pelosi (D-CA)
and U.S. Representative Rosa DeLauro (D-CT) unveiled
a policy platform called When Women Succeed, America
Succeeds: An Economic Agenda for Women and
Families. The agenda outlines a broad set of federal
policy initiatives to advance the economic security of
working families by promoting fair pay, family-friendly
workplaces, and universal child care. The momentum for
similar agendas is growing strong at the state level too.
Minnesota, for example, recently passed the Women’s
Economic Security Act,21 which strengthens fair pay laws
and expands protections for pregnant workers. Equal
Rights Advocates has joined a chorus of partners calling
for a sweeping women’s economic agenda in California
that will lead the nation in its inclusion of initiatives to meet
the basic needs of impoverished women and families.
The work of our movement is not done. Let us draw
inspiration from Title VII’s 50th Anniversary and push
ahead now to reach its intended goal – to create and
protect workplaces in which all workers have a chance to
contribute, participate, and flourish, no matter their sex.
Onward,
Noreen Farrell
Executive Director
Equal Rights Advocates
October 9, 2014
Page 5
Moving Women Forward: Part Three
A Gender Wage Gap
That Just Won’t Close
For over 14 years, Equal Rights Advocates and co-counsel have represented women workers
at Wal-Mart and Sam’s Club stores who are challenging practices that depress women’s
wages in retail and many other sectors: Paying women less for the same work. Passing
them over for raises and promotions in favor of men with less experience. Channeling
women away from departments that offer better promotion opportunities (like hardware and
electronics). Failing to post management openings. Despite presenting strong evidence of
discrimination, the plaintiffs in Dukes v. Wal-Mart were denied the chance to prosecute their
claims as a class. The repudiation of class claims in the Wal-Mart case — and others like it in
recent years — has especially troubling implications for low-wage workers, who often must
rely on collective action to bring about real change in their workplaces.
Fifty years after the passage of the Civil Rights
Act of 1964, the fight for fair pay for women in
the workplace remains fierce. Support for equal
pay polls higher than ever.167 Women are persistently
voicing concern about pay practices across industries,
from former Goodyear Tire employee Lilly Ledbetter,
whose pay discrimination case led to a law in her
name,168 to former New York Times Executive Editor
Jill Abramson, whose termination after she raised pay
disparity concerns raised a firestorm.169 U.S. Census
data confirms that the substantial gap between the
average annual earnings of men and women working
full time has barely budged over the past decade.170
This stubborn figure has sparked fierce debates over
the pay ratio’s meaning and significance,171 prompted
renewed calls for policy reform at the federal and state
levels,172 and inspired women’s advocates to come
together to identify innovative solutions and find ways
to coordinate efforts to combat the gender wage gap at
state and local levels.173 President Obama has thrown his
weight behind fair pay, issuing executive orders on Equal
Pay Day in 2014 to expand the Department of Labor’s
power to collect compensation data and prohibit federal
contractors from discriminating or retaliating against
employees or applicants for discussing their pay.174
When Title VII of the Civil Rights Act of 1964 was passed
50 years ago to prohibit, among other things, pay
discrimination based on sex, the workplace was in dire
need of reform. In 1960, close to 40 percent of women
over the age of 16 were working outside the home,175
but newspapers still published separate job listings for
men and women, explicitly categorizing jobs according
to sex. Higher-level jobs were listed almost exclusively
under “Help Wanted-Male,” and it was perfectly legal for
employers to run ads for identical jobs under the male
and female sections—but provide separate (and very
unequal) pay scales.176
Not until the passage of the Equal Pay Act (EPA) on June
10, 1963, which became effective on June 11, 1964,177
did it became illegal to pay women lower rates for the
same job strictly on the basis of their sex. At the time of
the EPA’s enactment, women working full time, yearround in the United States earned an average of less
than 59 cents for every dollar earned by men – a number
that hardly budged for the next 20 years.178 And when
Title VII passed the following year, barring discrimination
in employment “because of… sex,” employers could no
longer legally refuse to hire women on the basis of their
gender or formally relegate women to only lower-level
positions.
Many advocates believed that the two-power punch of
Title VII and the EPA would quickly knock out the gender
wage gap caused by decades of blatant discrimination
across all professions. Unfortunately, we remain
distressingly far from that goal.
Women broke many barriers in the years following Title
VII’s passage. They began participating in the workforce
in greater numbers, charted new territory in fields
previously closed, and began to march toward greater
equity in pay. Slowly, but steadily, women’s share of
income started to catch up with men’s.
But after a few decades of fairly steady progress,
women’s march toward pay equity slowed and, in the
mid-1990s, flattened out.179 Since the mid-‘60s, the
wage gap between men and women has been closing at
an average rate of about half a penny a year.180 Women
working full-time, year-round earn, on average, 78 cents
for every dollar earned by men.181 And the gap is even
worse for women of color, especially African Americans
and Latinas. Full-time workers in these groups earned an
average of just 64 and 56.5 cents, respectively, for every
dollar earned by white, non-Hispanic men in 2013.182 If
we continue to move at this pace, most women working
today will not live or work long enough to see the wage
gap close.183
As we move beyond the 50th anniversary of Title VII,
the lack of progress on closing the gender wage gap
prompts consideration of the following questions:
◆◆ What has Title VII done to curb practices
that contribute to the wage gap?
◆◆ How has Title VII failed to address the
causes and factors contributing to the wage
gap?
◆◆ What can be done, both within and beyond
Title VII, to overcome these challenges?
Many factors contribute to the gender wage gap.
This part of our report focuses on the segregation of
women into lower-paying fields and jobs and the underenforcement of Title VII due to pay secrecy, inadequate
access to pay information, and other barriers.
Page 7
Title VII’s Bright Spots: Progress in the
Fight for Fair Pay
Title VII vastly improved upon the principle of equal pay
for equal work established by the EPA184 by covering
forms of discrimination affecting women’s earnings
that were not covered by that law.185 It outlawed sexbased discrimination at all stages and in all aspects of
employment, including hiring, promotion, and termination,
enabling women to tackle a key contributor to the gender
wage gap: their exclusion from higher-paying jobs
within employers and industries.186 Under Title VII, an
employee can challenge not only unequal pay between
men and women performing substantially equal work,
but also discriminatory practices that lead to unequal
compensation, such as steering women to lower-paid
jobs than men or maintaining “glass ceilings” (artificial
barriers to the advancement of women that result in
female workers earning less pay).187
WHAT CONTRIBUTES TO THE GENDER
WAGE GAP?
Many factors contribute to the gender wage gap,
which is the average wage disparity between all
full-time male and female workers, across jobs and
industries:
• Women are paid less than men in nearly every
occupation for the same work;
• Women are segregated into female-dominated
jobs, which typically pay less than maledominated jobs requiring similar skill and effort;
• Widespread pay secrecy policies prevent
workers from discovering disparities;
• Discrimination relating to pregnancy and
caregiving responsibilities depresses women’s
pay;
• Wage theft (e.g., being paid less than the
minimum wage or being forced to work off
the clock) takes a hard hit on women, who
comprise two-thirds of the minimum wage
earners in this country.188
Title VII’s capacity to narrow the wage gap was
strengthened when courts recognized that the law
prohibits employers from allowing gender stereotypes
to influence employment decisions, even when those
stereotypes are applied in the absence of a formal policy
In Davis v. City and County of San Francisco, a suit
brought by ERA and other civil rights advocates in the
early 1980s, plaintiffs successfully used Title VII to force
changes in the hiring practices of the San Francisco
Fire Department.202 The Department had barred women
completely until 1979 and then applied tests that had
a disproportionately negative impact on women and
minorities. Today, as a result of that lawsuit, San Francisco
can proudly claim it is “the largest urban fire department
in the world with a female chief.” 203
of discrimination against women. In the landmark case
of Price Waterhouse v. Hopkins (1989),189 the Supreme
Court held that discriminating against an employee
based on her non-conformity to certain gender norms
constituted actionable sex discrimination under Title VII.
The plaintiff in that case had been denied partnership at
the national accounting firm where she worked because
she was deemed too “aggressive” and did not behave
in the “feminine” way that some of her colleagues
thought she should. Since Price Waterhouse, women
have successfully used Title VII to challenge similar
discriminatory practices that lead to the clustering
Page 8
of women into “pink-collar ghettos” – lower-status
departments and lower-paid positions190 – within many
occupations and across a wide variety of industries,
from pharmaceutical sales191 to financial services192 to
supermarkets.193
The strength of Title VII lies not only in its prohibition of
employment practices that intentionally or expressly treat
women worse than men because of their sex,194 but also
in its bar of policies and practices that appear genderneutral but have a disproportionately negative impact
on women with respect to their pay or other terms and
conditions of employment.195 Beginning in the late 1970s
and early 1980s, courts began relying on Title VII to strike
down facially neutral “requirements” that were excluding
women (and racial minorities) from jobs but were not, in
fact, job-related. Examples of such requirements include
minimum height and weight standards that shut women
out of many higher-paying jobs in traditionally maledominated occupations and industries like correctional
counseling,196 law enforcement,197 and bus driving198 for
years after the passage of Title VII.
In 1977, for example, ERA settled Mueller v. Greyhound
Lines West, a Title VII case challenging the bus
company’s policy of excluding qualified women from
driver positions through the use of minimum height
and weight requirements. The resolution of the case
led to the elimination of those requirements and the
establishment of female hiring goals.199
Over the decades, Title VII has also helped to ensure
that strength and physical abilities tests used to
screen and rank candidates in physically demanding
occupations are actually related to job requirements
and do not act as de facto bars to women obtaining
those jobs.200 Just last year, women relied on Title VII to
successfully challenge the Chicago Fire Department’s
physical ability test, obtaining settlements that opened
up those well-paid public-safety jobs to more women.201
Closing the Gap by Breaking the Glass Ceiling
After the Dukes v. Wal-Mart suit was filed, the company
stopped its widespread practice of allowing managers
to selectively notify male employees about promotion
opportunities. The company now posts job openings in
its management-training program, in which employees
must complete in order to advance into more high-paid
management positions.
Recent cases also illustrate Title VII’s continued promise
as a tool to challenge gender pay inequity within
occupations that employ large numbers of women such
as retail sales, where the gender wage gap is the largest
among the 20 most common occupations for women.204
For example, women workers in Scott v. Family Dollar
Stores 205 recently relied on Title VII to challenge not
only systemic intentional discrimination but also facially
neutral pay and promotions policies that were having a
disproportionately negative impact on women’s earnings.
These policies included a mandatory salary range for
store managers that locked in prior pay disparities
between men and women who held the same job.206
Title VII has helped women make significant progress
in better-paying occupations that used to be highly
male-dominated, such as mail carriers, photographers,
physicians, dentists, and lawyers, which has helped
to reduce the overall gap in men’s and women’s
earnings.207 The law also has helped some women
punch significant holes in the “glass ceiling” – the
circumstances and conditions that block women’s
advancement to higher-level leadership positions within
the workplace.208 The percentage of “managers” who
are women has risen from just 15 percent in 1960
to 40 percent in 2009.209 Moreover, today women fill
more than half of all professional and management
positions,210 though these higher-paying supervisory and
management positions still manifest many of the largest
pay differences between men and women.211
While Title VII has opened up new occupations and
fields to working women, significant obstacles remain
to achieving equality of opportunity and fair pay. We
now turn to those barriers and blind spots, which are
especially pronounced for low-wage women workers
and women of color.
Title VII’s Blind Spots: Why Fair Pay
Remains Elusive for Many Women
The continued disparity between men’s and women’s
earnings results in the loss of hundreds of thousands
of dollars over the average woman’s lifetime.212 Recent
research shows that the average woman loses more than
$434,000 over her life due to the gender wage gap.213
Women of color are faring worse. The gender wage gap
translates into annual losses of $18,650 for AfricanAmerican women and $24,111 for Latinas.214
Page 9
Title VII has not sufficiently dismantled the many
employment practices and labor market conditions
that contribute to the gender wage gap, particularly the
segregation of women into lower-valued and lower-paid
jobs. Enforcement barriers ranging from pay secrecy
policies that hide discrimination to continued attacks on
the class action device as a mechanism to prosecute
Title VII cases leave low-wage women workers
particularly vulnerable.
Title VII Has Not Dismantled the
Persistence of “Women’s Work.”
Title VII has not stopped the overpopulation of women
in “pink ghetto” jobs, nor has it ended the devaluation
of women-concentrated fields, even when the jobs
require the same levels of skill, education, effort, and
experience as similar jobs dominated by men. Today,
women remain clustered in lower-paying occupations
and disproportionately concentrated in the lowest-paid
positions across many segments and sectors of the
labor market.215 The fact that women now comprise twothirds of the minimum wage workforce is another sign
that “women’s work” is widely undervalued.216
Most working mothers in female-headed households
are concentrated in low-wage jobs in the service and
retail sectors, such as health aid, cashier, or maid, where
workers’ pay rates hover close to the minimum wage
and where typically no benefits, such as health insurance
or paid sick days, are provided.217 Title VII has not been
an effective tool to stop the funneling of women into
these undervalued jobs and occupations, nor has it
been able to change the fact that jobs predominantly
held by women are consistently paid less than those
predominantly held by men.
U.S. Census data confirms that many occupations
which were highly female-dominated in the mid-tolate 1960s have stayed that way: over 95 percent
of secretaries, dental hygienists and assistants, prekindergarten and kindergarten teachers, and child care
workers are still female.218 While women continue to be
overrepresented in clerical, service, and health-related
occupations,219 many blue-collar and mechanical
jobs, including supervisory positions, in industries like
construction, transportation, and the “uniformed trades”
(i.e., law enforcement and firefighting) remain extremely
sex-segregated in the opposite way, with women
comprising less than 5 percent of the workforce.220
Overall, male-dominated occupations pay more than
occupations of similar skill levels that are dominated
by women.221 And while women’s median earnings are
lower than men’s in nearly all occupations, whether
performed predominantly by women, predominantly
by men, or a more even mix of men and women,222 the
fact that male-dominated occupations tend to pay more
than those dominated by women is a major reason for
the persistence of the gender pay gap.223 Because so
much of “women’s work” continues to be devalued,
these jobs attract few men – which, in turn perpetuates
the overrepresentation of women in the lowest-paying
occupations, like clerical positions in which some nine
out of 10 employees are female.224
As long as women and men continue to funnel into
different fields and “women’s work” continues to be paid
less than men’s, Title VII and other equal pay laws will
remain limited in their capacity to close the gender
wage gap.
WHAT’S THE FIX?
The doctrine of “comparable worth” posits that
compensation for jobs chiefly held by women should
be the same as for jobs filled chiefly by men if the
jobs have equal value, even if the nature of work
performed is not the same.225 Though not adopted
by the courts,226 some states and other governmental
entities have embraced the doctrine in setting
wages for public employees.227 Research has shown
that comparable worth policies can be effective in
narrowing the gender wage gap, especially when they
require more than a “one-shot” fix and instead call for
regular assessments and adjustments to keep genderbased pay disparities in check.228 State and local
governments, as well as private employers, should
consider integrating comparable worth principles
into existing compensation policies and guidelines.
Employers should also develop tools to measure the
effectiveness of their pay equity policies to close salary
gaps between their employees.
Page 10
For example, while the percentage of women in
management jobs overall has increased in the decades
since Title VII’s passage, women’s share of these
leadership roles has not kept up with their rates of
participation in the labor force overall.230 Women in
the U.S. lag far behind women in most industrialized
countries in this regard: one recent study that surveyed
6,700 business leaders found that the United States
ranked in the bottom ten (37th out of 45 countries
examined) for the percentage of women in senior
management positions, with women occupying just 22
percent of those roles here – versus 41 percent of those
roles in Russia.231
Gender stereotypes operate outside of tradionally maledominated sectors as well. ERA client Kel is among a
group of women challenging sex discrimination at the
male-dominated shipyard where they work. Kel was hired
into a job classification below her work experience and
therefore was paid less than men who were less qualified.
In an environment also rife with sexual harassment, Kel and
other women at the shipyard have watched men – including
those hired after them –get raises and promotions while
they remain stuck in lower-paid jobs.
Gender Stereotyping Continues to
Exclude Women from Some Work.
Although Title VII has allowed women to make headway
into certain industries and occupations that were
previously closed to them entirely, women continue
to be underrepresented at all levels of higher-paid,
traditionally male-dominated occupations,229 particularly
in leadership roles within those fields. From professional
occupations like law, academia, and engineering,
to blue-collar fields like the construction trades and
mining, women in the United States continue to face
entry barriers and steep uphill climbs to promotion and
advancement in many fields.
Construction jobs provide another example. While
construction is a significant part of the U.S. economy,
with construction occupations accounting for over 5
percent of total civilian employment,232 women have
consistently held only a tiny fraction of jobs in this field –
only 2.6 percent of workers employed in “construction
and extraction occupations” in 2013 were women.233
Women who do enter the trades commonly face
sex discrimination and harassment, behaviors that
may then exacerbate women’s exclusion from these
occupations.234 These conditions persist despite Title
VII’s express prohibition on sex-based discrimination
and even though the federal government has mandated
affirmative action to increase the employment of women
by federal contractors and the enrollment of women in
the apprenticeship programs that are the main pathway
to employment in the skilled construction trades.235
Gender stereotypes operate outside of traditionally
male-dominated sectors as well. Extensive social,
psychological, and organizational behavior research
documents the ways in which unconscious racism
and sexism, and consequent stereotyping, operate in
employment decision-making.236 As former Secretary
of Labor Robert B. Reich put it: “Subtle but pervasive
patterns of discrimination dominate the public,
private and nonprofit sectors of society because of a
‘myopia’ on the part of many white male managers
who ‘unthinkingly discriminate’ without having any idea
they are doing so.”237 Unfortunately, Title VII has not
adequately dismantled these persistent and often hidden
forms of gender bias that contribute to the exclusion
of women from higher-paid jobs in male-dominated
industries and occupations.238
Page 11
WHAT’S THE FIX?
• Encourage employers in male-dominated
industries to give women visible roles and
ensure they have a voice in setting policies and
making decisions about hiring, compensation,
and promotion. Women’s invisibility perpetuates
stereotypes and bias, which then feeds into their
continued exclusion from male-dominated fields. It
also influences women’s pay.239
• Enact and fund legislation like the Women
& Workforce Investment for Nontraditional
Jobs Act, or the Women WIN Jobs Act,
which would improve and expand the 17-yearold Women in Apprenticeship and Nontraditional
Occupations (WANTO) 240 program at the
Department of Labor to help recruit, prepare,
place, and retain women in all kinds of highdemand, high-wage nontraditional jobs.241
• Open up girls’ access to education and
training in traditionally male-dominated
fields: Increase STEM (science, technology,
engineering, and mathematics) offerings and
programs targeting children at younger ages and
require each school to have a retention plan for
keeping girls in STEM programs and classes as
they continue through school.
• Adopting policies that the encourage girls
in STEM, including the Getting into Researching,
Learning & Studying STEM Act of 2014, recently
introduced by Congressman Jerry McNerney
(CA).242
Title VII Does Not Eliminate or Prohibit
Poverty Wages.
As a result of occupational segregation and ongoing
discrimination, women are disproportionately represented
in the low-wage workforce in this country. In fact, women
in the United States are twice as likely as men to be
employed in occupations that pay poverty wages.243
And even though Title VII prohibits discrimination based
on race as well as sex, the law unfortunately has not
diminished the impact of race on the likelihood that
women live – and work – in poverty: African-American
and Latina women are even more likely than women
as a whole to be employed in lower-paying service
occupations and significantly more likely to be among the
working poor.244 This is the case even though AfricanAmerican women historically have had higher rates of
labor force participation than white women and continue
to have the highest labor force participation rate among
all racial groups of women workers.245
Title VII was not designed to address the decreasing
value of the minimum wage – which has failed to
keep up with inflation246 or productivity gains.247
The diminishing value of the minimum wage
disproportionately affects women, who make up nearly
two-thirds of minimum wage workers,248 and especially
black and Latina women, who are more than twice as
likely as white men to work in jobs that pay at or below
the minimum wage.249 Similarly, Title VII has not yet been
used to attack the tipped minimum wage for restaurant
workers and others in the service industry, which has
been locked at the abysmal rate of $2.13 per hour for
over 20 years.250 The tipped minimum wage hits women
especially hard, since they comprise over two-thirds of
the workers who rely on tips to make ends meet.251
In addition, many female-dominated occupations, such
as home health care and domestic service, have been
historically excluded or exempted from laws that provide
for minimum wages, overtime pay, and protection from
discrimination.252 It is therefore not surprising that the
gap in poverty rates between men and women workers
is wider in this country than anywhere else in the
Western world.253
To make matters worse, low-wage working women
are highly vulnerable to wage theft (e.g., failing to pay
workers for all hours worked or failing to pay overtime
pay for overtime hours).254 And, as a practical matter,
when women are struggling to make ends meet and to
support their families on poverty-level wages, it is that
much more difficult for them to speak out against or
pursue legal action to challenge employment practices
that deny them fair pay.
Page 12
WHAT’S THE FIX FOR POVERTY WAGES?
• Raise the minimum wage and abolish the
tipped minimum wage: In the 2014 midterm
elections, voters in five states approved initiatives
to raise the minimum wage. In February 2014,
President Obama signed an executive order to raise
the minimum wage and tipped minimum wage for
federal contract workers.255 If passed, the federal
Fair Minimum Wage Act would increase the federal
minimum wage from $7.25 to $10.10 per hour and
index it to inflation thereafter, while also raising the
tipped minimum wage (currently at $2.13 per hour)
for the first time in over 20 years. While a good
start, policymakers need to go further to abolish the
tipped minimum wage altogether. Why should some
low-wage workers be forced to live on tips to make
a minimum wage?256
Title VII Does Not Guarantee Access to
the Information Needed to Challenge
Discriminatory Hiring Practices
Several years ago, ERA investigated a company whose
employment patterns at facilities across the country
looked strikingly similar: in location after location, women
were concentrated in administrative and office positions
and were nearly absent from warehouse and driver
positions, which paid substantially more. ERA found
out that postings for those higher-paid jobs included
a 100-lb. lifting requirement, even though longtime
employees confirmed they could not recall ever having
to lift such heavy loads. Meanwhile, the employer
insisted that the segregation of its workforce was the
result of self-selection: women simply did not apply for
or want the higher-paid warehouse jobs. Though ERA
suspected discrimination, the case proved to be very
difficult. Without a lawsuit pending, the employer had
no obligation to produce pay and hiring data to ERA,
and the efforts to find deterred applicants to serve as
plaintiffs hit a dead end. The outcome was frustrating but
not atypical, given that most job seekers are reluctant
to serve as plaintiffs in protracted litigation against a
potential employer.
Social science evidence suggests that hiring
discrimination plays a considerable role in keeping
women out of certain jobs or channeling them into
predominantly female, lower-paid positions.257 Recent
studies have confirmed that, even today, employers
in fields as diverse as science, classical music, and
restaurants are less likely to hire and more likely to offer
lower pay to female candidates than male candidates
when shown identical resumes or presented with the
same application materials.258
Hiring is generally the earliest stage in the employment
process at which an employer’s decisions and actions
can be challenged as discriminatory,259 and Title VII
prohibits any employment practice that intentionally
or unintentionally segregates or discriminates against
employees or job applicants based on sex. One would
therefore expect to see it frequently used to challenge
hiring practices and decisions that generate or perpetuate
gender-based segregation in the workforce. But in
fact, hiring discrimination complaints are relatively rare,
comprising less than 1.8 percent of all sex discrimination
charges with the EEOC between 2010 and 2013.260
Hiring claims are uncommon because applicants lack the
data they need to bring them. Prior to filing a case and
conducting formal discovery, it is often not possible for
an individual to find out whether the position was filled,
who ultimately was hired, how much pay that person was
offered, and who made or approved the hiring decision.
Additionally, in today’s Internet age, many initial screening
and even some hiring decisions are based on documents
and social media searches rather than in-person
interviews.261 This adds to the imbalance of information,
which makes it difficult for workers to know whether
they have been discriminated against.262 Challenging a
pattern or practice of hiring discrimination263 that harms
many women is even more challenging: absent costly
class action litigation, it is often not possible to obtain the
statistical data generally needed to show that women are
substantially underrepresented in a given workforce,264
because employers are not legally required to maintain
records about the bases or outcomes of every hiring
decision or to make them publicly available.
Another reason why hiring cases remain relatively
uncommon and difficult to prove is the rise of the
“difference in interest” (or “lack of interest”) defense,
which allows employers sued under Title VII to justify
statistical differences in hiring patterns based on often
untested or theoretical assumptions and generalizations
about certain groups’ preferences and tendencies –
assumptions that are themselves often based in gender
and/or race stereotypes.265 A typical example of how this
Page 13
defense has been applied to Title VII sex discrimination
claims can be found in EEOC v. Sears, Roebuck &
Co.266 In that case, saleswomen were concentrated in
Sears’ apparel and cosmetics departments while the
company’s higher-paying commission sales jobs were
filled almost entirely by men. Deferring to the employer’s
explanation for why few women had applied for these
jobs, the Seventh Circuit concluded that women’s “lack
of interest” explained the disparity.267
WHAT’S THE FIX?
Increase Use of Testers
• Give EEOC authority and funding to use testers in
employment discrimination investigations to help fill
the existing enforcement void.268 Because the scope
of the EEOC’s legal authority to conduct testing
investigations in the employment context is currently
unclear,269 Congress should take action to ensure
that the EEOC has the power to use and prosecute
cases using testers under either its pattern-andpractice enforcement authority270 or its general
power to investigate actions on behalf of individual
charging parties, which goes beyond simply acting
as a proxy for victims of discrimination.271 The EEOC
also has a right of action to vindicate the public
interest in preventing employment discrimination
and to seek injunctive relief to prevent and eliminate
unlawful employment practices.272 The EEOC could
play an especially important role in bringing hiring
cases because it may seek systemic relief for a class
of employees under Title VII without satisfying the
requirements for class certification under Federal
Rule of Civil Procedure 23.273
Pay Secrecy Impedes Title VII
Enforcement by Employees and the
EEOC.
Lack of information about employee wages also impedes
enforcement of Title VII by individual workers and
encumbers the EEOC, whose authority to collect and/
or require disclosure of workforce compensation data
from private employers is limited.274 Without access
to such information, it is nearly impossible to identify
discriminatory patterns and practices with regard to
compensation.275
WHAT’S THE FIX?
Increase Access to Pay Data
• Require employers that already file EEO-1 reports to
maintain records and report on job applicants and
pay rates, not just demographic breakdowns
of their existing workforce. While federal contractors
are required to collect demographic data on
applicants, the large private employers who are
required to submit demographic data about their
employees to the EEOC each year (in the form of
“EEO-1” reports) do not have to record or report
applicant information.276 This could be changed.277
• Empower the EEOC to investigate and follow up
on the data it collects. Data on actual rates of pay
provide more valid measures of an employer’s
compensation policies and the impact of those
policies on the distribution of earnings across the
workforce as a whole.278 If the EEOC gathered
actual payroll records and pay rate information, as
opposed to merely collecting pay band data, its
ability to monitor compliance with and rigorously
enforce anti-discrimination laws with respect to
compensation would be greatly enhanced. The
EEOC should work in conjunction with the Office
of Federal Contract Compliance Programs of the
U.S. Department of Labor (OFCCP) to prepare a
comprehensive plan for using earnings data so
that it can effectively implement expanded data
collection.279
Neither the EPA nor Title VII creates an affirmative
right to obtain information about other employees –
even where it would be necessary for a woman to
determine whether she is being paid less than a similarly
situated male colleague. Moreover, the federal law that
protects some employees from retaliation for sharing or
discussing salary information with other employees, the
National Labor Relations Act,280 has loopholes that allow
employers to penalize many employees who discuss
their wages. Only a handful of states expressly prohibit
employers from retaliating against employees who
disclose their wages.281
Title VII depends heavily on individuals enforcing their
own rights by bringing complaints. Yet employers
frequently discourage or prohibit their employees from
inquiring about, discussing, or disclosing wage
information with other employees. Poor access to
Page 14
information about pay, coupled with employees’ general
fear of losing their jobs or hurting their reputation at work
if they inquire or complain about pay disparities,
contributes to chronic under-enforcement of Title VII and
other equal pay laws.282
WHAT’S THE FIX? THE PAYCHECK
FAIRNESS ACT
The Paycheck Fairness Act, proposed federal
legislation that has been rejected several times in
recent years, would strengthen equal pay protections
for workers in several important ways, including:
1. narrowing the catch-all defense of “any factor other
than sex” defense to equal pay claims,
2. prohibiting employer retaliation against employees
who share information about their pay,
3. making it possible to bring class actions under the
EPA,
4. improving remedies available to workers who prove
they were not paid equally, and
5. improving the collection of pay data by the
EEOC, to enhance the federal government’s
ability to detect violations of laws prohibiting pay
discrimination and to take enforcement action.283
Title VII Has Not Opened Up Pathways to
the Courthouse for Low-Wage Women
Workers.
ERA client Lauren was hired right out of graduate school
into her dream job as a geologist. She was offered what
she was told was an entry-level salary, which was far
more than she had made in previous jobs. Lauren was
thrilled with her job until she learned, only by chance,
that her male colleague with the same credentials and
experience started at an entry level salary that was over
$10,000 per year more than hers.
As with other factors contributing to occupational
segregation and the persistent gender wage gap, the
under-enforcement of Title VII with respect to hiring and
other employment practices has a particularly strong
negative impact on low-wage women workers, who are
disproportionately women of color.284 The enforcement
void in hiring cases (the difference between the optimal
and actual number of cases brought) is greatest with
respect to those involving lower-skilled, entry-level jobs.285
The enforcement void in cases challenging pay and
hiring discrimination, which impedes women’s access
to higher wage jobs, has become particularly acute
recently as a result of troubling court decisions that have
upheld mandatory forced arbitration of employment
claims286 and weakened the ability of employees to
collectively challenge discriminatory employment
practices through class action lawsuits.287 Class actions
serve a vital role in Title VII enforcement, especially for
low-wage workers who fear retaliation if they act alone
and who cannot afford to file individual cases. Often the
victims of pay secrecy policies, many low-wage workers
lack the information they need to detect patterns of
discrimination before a class suit is filed.
Page 15
For example, in the Dukes v. Wal-Mart case, it was only
after ERA client Betty Dukes filed her lawsuit that she
learned that women working at Wal-Mart stores across
the country were paid less and denied promotions,
despite having higher performance evaluations and
more experience than their male co-workers. Particularly
because class actions are often the only means by which
low-wage workers can obtain injunctive relief to address
widespread injustices, it is imperative to support policy
reform that will ensure the longevity of this device that is
so critical to Title VII’s continued vitality.
Conclusion
Significant anniversaries of the Equal Pay Act and the
Civil Rights Act have forced politicians, advocates,
media pundits, and the general public to take notice of
the sizeable gender wage gap which has not narrowed
in a decade. A coordinated effort is needed to remove
barriers to Title VII enforcement, advance new policies
to strengthen our equal pay laws, and tackle the gender
stereotypes that perpetuate occupational segregation
and depress women’s wages. We cannot afford to wait
another 50 years for fair pay.
WHAT’S THE FIX?
Support Legislation to Restore Class Action
Rights
After the Supreme Court’s decision in Dukes v. WalMart Stores came down, the Equal Employment
Opportunity Restoration Act of 2012 (EEORA) 288 was
introduced to clarify and restore employees’ right to
challenge discriminatory employment practices as a
group under Title VII and other civil rights laws. While
efforts to enact the EEORA so far have not been
successful, its passage would ensure that:
• Regardless of the size of the employer or
number of employees involved, workers are once
again able to band together to fight unlawful
discrimination;
• Workers can join together to challenge
discriminatory subjective employment practices,
such as when unlawful bias systematically taints
personnel decisions left to managers’ discretion;
• Employers’ written nondiscrimination policies are
only considered as support for their defenses in
cases where those policies are consistently and
effectively implemented; and
• Courts can exercise discretion in setting the
appropriate monetary relief due to victims of
discrimination, a critical remedy under Title VII and
other civil rights laws.
Stop Mandatory Arbitration from Eviscerating
Workers’ Civil Rights
Enforcement actions brought by workers stepping
up as “private attorneys general,” either individually
or as a group, are critical to Title VII’s effectiveness
in eradicating workplace discrimination. The spread
of mandatory, forced arbitration and class action
bars in the employment context poses a serious
and growing threat to the continued vitality of many
labor protections and civil rights laws by taking away
workers’ ability to bring such actions in a public forum
(the courts), or to bring them collectively anywhere.
Congress should enact legislation, like the Arbitration
Fairness Act,289 which would help to reverse this trend
by making it unlawful for employers to impose forced
arbitration on employees as a condition of getting or
keeping their jobs.
Page 16
Seizing the Moment:
Summary of Part Three Recommendations
To address persistent unfair pay and promotion practices in the workplace, a broad set of measures and actions is
needed to move women forward on this 50th Anniversary of the Civil Rights Act of 1964. These suggested actions
will correct misinterpretations of Title VII, improve enforcement of this law and others designed to advance women at
work, and fill policy gaps that leave too many without the help and protection they need to enjoy economic security
and equal opportunity.
1. Policymakers should enact broad women’s
economic security policy agendas at the
federal and state levels, like the federal When
Women Succeed, America Succeeds Agenda
introduced by House Democrats and the recentlypassed Minnesota Women’s Economic Security Act.
The agendas should take a comprehensive approach
with initiatives to meet the basic needs of women in
poverty, raise income, open pathways to quality jobs,
improve workplace fairness, and improve access to
high quality and affordable child care.
2. Policymakers should re-introduce and pass the
Paycheck Fairness Act, which would amend the
Equal Pay Act to prohibit employers from retaliating
against employees for discussing their pay. The PFA
would also close loopholes in existing equal pay
laws, improve the government’s ability to enforce
those laws, and increase the remedies available to
workers who prevail on equal pay claims.
3. Policymakers should take steps to ensure one
fair wage for all workers by increasing the federal
minimum wage and abolishing the tipped minimum
wage, which is as low as $2.13 per hour in some
states.
4. Policymakers should support legislation
like the Women & Workforce Investment for
Nontraditional Jobs Act, or the Women WIN
Jobs Act, which would improve and expand
the 17-year-old Women in Apprenticeship and
Nontraditional Occupations (WANTO) program at the
Department of Labor to help recruit, prepare, place,
and retain women in all kinds of high-demand, highwage nontraditional jobs.
5. Policymakers should pass the Pregnant
Workers Fairness Act. This federal aw
would require employers to provide reasonable
accommodations to pregnant employees unless
doing so would pose an undue hardship to the
business. The law would allow more women to keep
their jobs without the interruptions that depress
wages.
6. Policymakers should pass the Equal
Employment Opportunity Restoration Act or
similar legislation to eliminate some of the obstacles
to class certification erected by recent Supreme
Court and federal court decisions.
7. Policymakers should adopt legislation
to ensure that more girls have access to
education in STEM (science, technology,
engineering, and math) fields. Bringing more women
into these fields will reduce the gender wage gap.
8. The Department of Labor should enforce laws
designed to ensure women’s equal access to
and advancement opportunities in male-dominated
construction trades. The DOL’s Office of Federal
Contract Compliance Programs (OFCCP) should
proceed with sex discrimination and affirmative
action guidelines for federal contractors under
Executive Order 11246, as these regulations have
not been updated in over 30 years.
9. The Equal Employment Opportunity
Commission should actively enforce laws
prohibiting discrimination in hiring by using
testers and other targeted strategies. The EEOC
should also promote the reform necessary to require
employers to provide more data in EEO-1 reports
about demographic profiles of job applicants.
Page 17
Seizing the Moment:
Summary of Part Three Recommendations
10. The Equal Employment Opportunity
Commission should proceed with full
implementation of the EEOC Strategic
Enforcement Plan FY 2013-2016, which focuses
on eliminating discriminatory hiring practices,
combating discrimination against immigrant workers,
fighting gender-based pay discrimination, and
deterring workplace harassment.
11. Employers should adapt best practices around
fair pay, basing pay decisions on objective and
measurable criteria and be transparent about pay
rates.
12. Employers should give women visible and
leading roles in the workplace, ensuring
that women have a voice in setting policies and
making decisions about hiring, compensation,
and promotion. Women’s invisibility perpetuates
stereotypes and bias, which exacerbate their
exclusion from male-dominated fields and their
underrepresentation in positions of leadership and
authority across many industries and occupations.
13. Employers should support workers’ rights to
organize and act together so they can promote
fair workplaces.
Page 18
Endnotes
Executive Summary
1
The original draft of Title VII of the Civil Rights Act of 1964 would have prohibited workplace discrimination on the basis “race, color, religion, or national origin.” See, e.g., Louis Menand, The Sex Amendment, The New Yorker (July 21, 2014), http://www.newyorker.com/magazine/2014/07/21/
sex-amendment. Two days before the bill went a to vote in the House of Representatives, the amendment to add sex was introduced by Representative Howard W. Smith, a Democrat from Virginia who was vocally opposed to civil rights for African-Americans. See Robert C. Bird, More
than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination in the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L.
137, 150 (1997) (citing 100 Cong. Rec. 2577). While there are several theories about why Smith introduced the sex amendment, it is undisputed
that Representative Martha Griffiths’ passionate defense of it contributed to its passage in the House. Id. at 139-40, 155-56; see also United
States House of Representatives History, Art & Archives, Griffiths, Martha Wright, http://history.house.gov/People/Listing/G/GRIFFITHS,-MarthaWright-%28G000471%29/ (last visited July 31, 2014).
2
417 U.S. 484 (1974).
3
42 U.S.C. § 2000e(k).
4
600 F.2d 211 (9th Cir. 1979).
5
890 F.2d 1438 (9th Cir. 1989) (affirming consent decree).
6
603 F.3d 571 (9th Cir. 2010), rev’d, 131 S. Ct. 2541 (2011).
7
See Nat’l Women’s Law Ctr., 10 Reasons Raising the Minimum Wage to $10.10 Is a Women’s Issue, at 1 n.1 (Feb. 2014), http://www.nwlc.org/
sites/default/files/pdfs/10.10_minimumwagefactsheet_green.pdf (citing U.S. Dep’t of Labor, Bureau of Labor Statistics, Characteristics of Minimum Wage Workers: 2012, Table 1, available at http://www.bls.gov/cps/minwage2012tbls.htm).
8
See Ariane Hegewisch & Stephanie Keller Hudiburg, Inst. for Women’s Policy Research, Fact Sheet #C414, The Gender Wage Gap by Occupation and by Race and Ethnicity, 2013, at 3 (Apr. 2014), available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupationand-by-race-and-ethnicity-2013.
9
See U.S. Dep’t of Labor, Bureau of Labor Statistics, supra note 7, at Table 1 (Black and Latina women are more than twice as likely as white
women to be living in poverty and more than twice as likely as white men to work in jobs that pay at or below the minimum wage).
10 Joya Misra et al., Cross-National Patterns in Individual and Household Employment and Work Hours by Gender and Parenthood 28, 39 (Luxembourg Income Study Working Paper Series, July 2010) (rates and hours of employment); Joya Misra et al., Work-family policies and the effects of
children on women’s employment hours and wages, in Community, Work & Family 14:2, 148-49 (Routledge ed., 2011.)
11 John W. Whitehead, Eleventh Hour Amendment or Serious Business: Sexual Harassment and the United States Supreme Court’s 1997-1998
Term, 71 Temple L. Rev. 773, 779 (2005); Gillian K. Hadfield, Rational Women: A Test for Sex-Based Harassment, 83 Calif. L. Rev. 1151, 1174
(1995).
12 Rest. Opportunities Ctrs. United, Tipped Over the Edge: Gender Inequity in the Restaurant Industry (Feb. 13, 2012), http://rocunited.org/
files/2012/02/ROC_GenderInequity_F1-1.pdf; see also Steven Rosenfeld, National Restaurant Association Ensures Poverty Wages, Salon (Aug.
28, 2013, 5:41 AM), http://www.salon.com/2013/08/28/the_other_nra_how_the_national_restaurant_association_ensures_poverty_wages_partner/; Jeanne Smalek, Waitresses Stuck at $2.13 Hourly Minimum for 22 Years, Bloomberg (Apr. 25, 2013, 9:01 PM), http://www.bloomberg.com/
news/2013-04-25/waitresses-stuck-at-2-13-hourly-minimum-for-22-years.html; Living Off Tips, ROCUnited.org, http://rocunited.org/living-offtips-our-campaign-to-raise-the-tipped-minimum-wage/ (last visited June 12, 2014).
13 U.S. Census Bureau, Maternity Leave and Employment Patterns of First Time Mothers: 1961-2008, at 9 (Oct. 2011), available at www.census.
gov/prod/2011pubs/p70-128.pdf (percentage of pregnant employees fired or laid off increased from 3.5 percent in 1981-1985 to 4.7 percent in
2006-2008).
14 Latina pregnant women/new mothers, for example, were fired or laid off at nearly double the rate of their white counterparts, and African Americans at nearly one and a half times the rate of their white female counterparts. Id. at 11, Table 7 (data from 2006-2008).
15 Pregnant women or new mothers without a high school degree—those likely to work in lower-wage jobs—are three times more likely than more
educated women workers to be fired upon the birth of their first child. Ann O’Leary, How Family Leave Laws Left Out Low-Income Workers, 28
Berkeley J. Emp. & Lab. L. 1, 7 (2007).
16 U.S. Equal Emp’t Opportunity Comm’n, Office of Legal Counsel, Response to Equal Rights Advocates Freedom of Information Act (FOIA) Request
(Aug. 27, 2013) (on file with Equal Rights Advocates); Nat’l P’ship for Women & Families, The Pregnancy Discrimination Act: Where We Stand
30 Years Later 4-6, 8-9 (Oct. 2008), available at http://go.nationalpartnership.org/site/DocServer/Pregnancy_Discrimination_Act_-_Where_We_
Stand_30_Years_L.pdf (discussing the rise in pregnancy discrimination claims across the country).
17 See Diane M. Houston & Gillian Marks, The Role of Planning and Workplace Support in Returning to Work After Maternity Leave, 41 British J. of
Indus. Rel. 197, 199 (2003).
18 See Ariane Hegewisch et al., Inst. for Women’s Policy Research, Fact Sheet #C413, The Gender Wage Gap: 2013, at 3 (Mar. 2014), available at
http://www.iwpr.org/publications/pubs/the-gender-wage-gap-2013-differences-by-race-and-ethnicity-no-growth-in-real-wages-for-women.
19 Maria Shriver & Ctr. for Am. Progress, The Shriver Report: Woman’s Nation Pushes Back from the Brink: Executive Summary (Jan. 12, 2014),
available at http://shriverreport.org/a-womans-nation-pushes-back-from-the-brink-executive-summary-maria-shriver/. This data was drawn from
a poll conducted by Greenberg Quinlan Rosner Research, in collaboration with the Center for American Progress and The Shriver Report, which
contacted 3,500 adults by landline, including Spanish speakers. See The Shriver Report: Woman’s Nation Pushes Back from the Brink (Jan. 12,
2014), at Loc. 44 (“Powerful and Powerless” chapter) n.12.
20 See Women’s Voices Women Vote Action Fund, Americans Overwhelmingly Support Economic Proposals that Aid Women (July 22, 2013), available at http://www.wvwvaf.org/news/american-voters-overwhelmingly-support-economic-proposals-that-aid-women/.
21 H.F. 2536, 88th Leg. (Minn. 2013-14).
Page 19
Part Three: A Gender Wage GapThat Just Won’t Close
167 A 2013 poll found that 90 percent of American voters favor policies that would help women get equal pay for equal work and raise wages for
women and families. See Women’s Voices Women Vote Action Fund, Americans Overwhelmingly Support Economic Proposals that Aid Women
(July 22, 2013), available at http://www.wvwvaf.org/news/american-voters-overwhelmingly-support-economic-proposals-that-aid-women/.
168 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009).
169 See, e.g., Ken Auletta, Why Jill Abramson Was Fired, The New Yorker (May 14, 2014, 10 PM), http://www.newyorker.com/online/blogs/currency/2014/05/why-jill-abramson-was-fired.html; Daniel D’Addario, Jill Abramson Fired for Seeking Equal Pay: Report, Salon (May 14, 2014,
3:22 PM), http://www.salon.com/2014/05/14/jill_abramson_fired_for_seeking_equal_pay_report/; Robin Abcarian, Is Fired N.Y. Times Editor Jill
Abramson the New Lilly Ledbetter?, L.a. Times (May 15, 2014, 8:13 AM), http://www.latimes.com/local/abcarian/la-me-ra-new-york-times-fired-jillabramson-20140515-column.html.
170 U.S. Dep’t of Labor, Bureau of Labor Statistics, Women in the Labor Force: A Databook 1 (2013), http://www.bls.gov/cps/wlf-databook-2012.pdf.
171 Compare Glenn Kessler, President Obama’s Persistent ’77-cent’ Claim on the Wage Gap Gets a New Pinocchio Rating, The Washington Post
(Apr. 9, 2010), available at http://www.washingtonpost.com/blogs/fact-checker/wp/2014/04/09/president-obamas-persistent-77-cent-claimon-the-wage-gap-gets-a-new-pinocchio-rating (asserting that the gap is primarily the result of “differences in life choices and men and women,” not discrimination by employers or gaps in antidiscrimination and other employment-related policies), and Heidi Hartmann et al., Inst. for
Women’s Policy Research, 6 Things Washington Post’s Glenn Kessler Missed About the Gender Wage Gap (Apr. 10, 2014), http://www.iwpr.org/
blog/2014/04/10/6-things-washington-posts-glenn-kessler-missed-about-the-gender-wage-gap/ (responding to Kessler’s piece).
172 U.S. Senator Barbara Mikulski and Congresswoman Rosa DeLauro reintroduced the Paycheck Fairness Act, S. 84, 113th Cong., on January 23,
2013 (five months before the EPA’s anniversary). See http://www.mikulski.senate.gov/media/pressrelease/1-23-2013-1.cfm. Legislators tried to
force a vote on the bill around the time of Equal Pay Day in April – the day in 2013 when the average woman’s earnings finally caught up to the
average man’s earnings in 2012 – but were blocked by House Republicans, who voted unanimously against the motion to bring the bill up for a
vote. See Laura Bassett, Paycheck Fairness Act Vote Blocked by House GOP, Huffington Post, April 11, 2013 (updated April 12, 2013),
http://www.huffingtonpost.com/2013/04/11/paycheck-fairness-act_n_3063804.html.
173 See Equal Pay Today! Campaign, Equal Rights Advocates, http://www.equalrights.org/our-work/marginalized-women-workers/current-advocacy/
equal-pay-today/ (last visited July 29, 2014); Noreen Farrell, 50 Years, 50 Governors: Are You Listening?, Huffington Post, June 10, 2013,
http://www.huffingtonpost.com/noreen-farrell/equal-pay-today_b_3414930.html (announcing launch of Equal Pay Today! Campaign).
174 See Exec. Order No. 13,665, 79 Fed. Reg. 20749 (Apr. 11, 2014), http://www.whitehouse.gov/the-press-office/2014/04/08/executive-order-non-retaliation-disclosure-compensation-information.
175 U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Quarterly 29 (Winter 2011-12), http://www.bls.gov/opub/ooq/2011/winter/
art02.pdf.
176 Not until 1973 did the Supreme Court actually bar employers’ use of sex-segregated “Male Help Wanted” and “Female Help Wanted” columns
and hold that newspapers’ publication of these columns was illegal. See Pittsburgh Press v. Pittsburgh Comm’n on Human Relations, 413 U.S.
376, 388-90 (1973) (finding that sex-segregated columns were unlawful because they enabled employers to express unlawful gender preferences).
177 29 U.S.C. § 206(d).
178 Between 1950 and 1980, while women’s workforce participation increased substantially, the ratio of female to male earnings for full-time, yearround employees was virtually constant at approximately 60 percent. See Claudia Goldin, The Concise Encyclopedia of Economics: Gender
Gap, Library of Econs. and Liberty, 2008, at Fig. 2, http://www.econlib.org/library/Enc/GenderGap.html (last visited May 12, 2014) (citing Claudia
Goldin, Understanding the Gender Gap: An Economic History of American Women (University of Chicago Press, 1990); Nat’l Comm. on Pay Equity, The Wage Gap Over Time: In Real Dollars, Women See a Continuing Gap, http://www.pay-equity.org/info-time.html (based on U.S. Census
Bureau reports and data, Current Population Surveys, Median Earnings of Workers 15 Years Old and Over by Work Experience and Sex) (last
updated Sept. 2013).
179 Women’s labor force participation rate peaked at 60 percent in 1999 but dropped to 58.1 percent by 2011. See Bureau of Labor Statistics, supra
note 109, at 1. Women’s earnings as a percentage of men’s also stopped growing, and in recent years they have begun to shrink. The Institute for
Women’s Policy Research summarized the overall trend in recent decades:
Progress in closing the gender earnings gap, based on both weekly and annual earnings, has slowed considerably since the 1980s and early
1990s. Based on median weekly earnings, the gender earnings gap narrowed by only 1.7 percentage points during the last ten years (2004 to
2013); in the previous ten year period (1994 to 2003), it narrowed by 3.1 percentage points, and during the ten years prior to that (1984 to 1993),
by 9.7 percentage points. Based on median annual earnings, progress in closing the gender earnings has also slowed considerably. If the pace of
change in the annual earnings ratio were to continue at the same rate as it has since 1960, it would take until 2058 for men and women to reach
parity.
Hegewisch, supra note 18.
180 See The Wage Gap: A History of Pay Inequity and the Equal Pay Act, Infoplease.com, http://www.infoplease.com/spot/equalpayact1.html#ixzz2rGtPnGVW (last visited July 14, 2014).
181 See Ariane Hegewisch & Heidi Hartmann, Inst. for Women’s Policy Research, Fact Sheet #C423: The Gender Wage Gap: 2013 1 (Sept. 2014).
available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-2013.
182 Id. at 2.
183 See Jeff Hayes, Inst. for Women’s Policy Research, Quick Figures # Q004: Gender Wage Gap Projected to Close in Year 2058 (Sept. 2013),
http://www.iwpr.org/publications/pubs/gender-wage-gap-projected-to-close-in-year-2058-most-women-working-today-will-not-see-equal-payduring-their-working-lives.
184 The Equal Pay Act provides, in pertinent part, that:
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No employer having employees subject to any provisions of [the minimum wage sections of the Fair Labor Standards Act of 1938] shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees
in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work
on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except
where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality
of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in
violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
29 U.S.C. § 206(d)(1).
185 See, e.g., Deborah L. Brake & Joanna L. Grossman, Title VII’s Protection Against Pay Discrimination: The Impact of Ledbetter v. Goodyear Tire &
Rubber Co., Regional Lab. Rev. (Fall 2007), available at http://www.hofstra.edu/pdf/academics/colleges/hclas/cld/cld_rlr_fall07_title7_grossman.
pdf.
186 42 U.S.C. § 2000e-2 provides that:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race color, religion, sex, or national origin.
[…]
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or
national origin.
187 Depending on the facts of the case, such practices may fall under either or both sections 703(a)(1) and 703(a)(2) of Title VII. See 42 U.S.C. §
2000e-2(a)(1) & (a)(2); Compensation Discrimination in Violation of Title VII, ADEA, or ADA, 2 EEOC Compl. Man. (BNA) at N:915.003 (Dec. 2000),
http://www.eeoc.gov/policy/docs/compensation.html. For a study finding that discrimination by employers tends to steer women into lower-paying occupations and men into higher-paying occupations, see David Neumark et al., Sex Discrimination in Restaurant Hiring: An Audit Study, 111
Quarterly J. Of Econ. 915-42 (1996).
188 U.S. Dep’t of Labor, Bureau of Labor Statistics, Characteristics of Minimum Wage Workers: 2012, Table 1, http://www.bls.gov/cps/minwage2012tbls.htm (last visited July 15, 2014).
189 Price Waterhouse v. Hopkins, 490 U.S. 228, 272 (1989).
190 Scott A. Moss, Women Choosing Diverse Workplaces: A Rational Preference with Disturbing Implications for Both Occupational Segregation and
Economic Analysis of Law, 27 Harv. Women’s L.J. 1, 3 (2004).
191 See, e.g., Velez v. Novartis Pharm. Corp., 244 F.R.D. 243 (S.D.N.Y. 2007), final approval of settlement granted Nov. 19, 2010 (class action sex
discrimination suit brought on behalf of more than 6,000 female sales representatives who alleged systemic discrimination in pay, promotions,
and other working conditions, resulting in consent decree issued under Title VII providing for $152.5 million in back wages, benefits, and adjusted
wages; incentive payments to the named plaintiffs who helped litigate the case; attorneys’ fees of $38.1 million and litigation costs of $2 million;
and $22.5 million in non-monetary relief representing Novartis’ commitments to enhance its employment policies to eliminate sex discrimination.
Settlement was reached following jury verdict awarding plaintiffs $250 million in punitive damages); see Kevin P. McGowan, Court OKs $175
Million Settlement of Novartis Sex Bias Claims, Bloomberg BNA (Nov. 30, 2010), http://www.bna.com/court-oks-175-n5510/.
192 See, e.g., EEOC v. Morgan Stanley & Co., 256 F.R.D. 124, 125 (S.D.N.Y. 2004) (Title VII sex discrimination suit that resulted in a $54 million
settlement against the Wall Street firm on the brink of trial in 2004); see also Press Release, Equal Emp’t Opportunity Comm’n, EEOC and Morgan
Stanley Announce Settlement of Sex Discrimination Lawsuit (July 12, 2004), http://www.eeoc.gov/eeoc/newsroom/release/7-12-04.cfm.
193 See, e.g., Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 336 (N.D. Cal. 1992) (finding that “sex discrimination was the standard operating
procedure at Lucky with respect to placement, promotion, movement to full-time positions, and the allocation of additional hours”); Shores, et. al.
v. Publix Super Markets, Inc., No. 95-1162-CIV-T-25E, 1996 U.S. Dist. LEXIS 3381 (M.D. Fla. Jan. 27, 1997) (certifying a class of over 100,000 female management and non-management employees of Publix grocery stores, then Florida’s largest private employer, in what was at the time the
largest sex discrimination suit in history). In 1997, Shores settled for $81.5 million and a seven-year agreement in which Publix made significant
changes to its personnel practices nationwide to ensure equal employment opportunities for all employees and to increase the number of women
in management positions. See Allan R. Myerson, Supermarket Chain to Pay $81 Million to Settle a Bias Suit, N.Y. Times, Jan. 25, 1997, available
at http://www.nytimes.com/1997/01/25/business/supermarket-chain-to-pay-81-million-to-settle-a-bias-suit.html (describing settlement against
Publix and noting that several other grocery chains lost or settled major sex discrimination cases in the 1990s, including Lucky Stores in 1994
[$107 million]; Safeway in 1994 [$7.5 million], and Albertson’s in 1996 [$29.4 million, covering female and Hispanic employees]).
194 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973), was the first Supreme Court case to define the phrase “because of” as used in
Title VII and to set out the burdens and nature of proof for an individual disparate treatment case under the law. Since 1973, all federal courts have
adopted the order and allocation of proof set forth in McDonnell Douglas for claims of disparate treatment discrimination that are not based on
“direct evidence” of discriminatory intent. Id.; see also Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-49 (2000) (both affirming McDonnell Douglas and addressing the burdens of proof in disparate
treatment cases under Title VII).
195 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (applying disparate impact framework in race discrimination case and holding that Title VII
“proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”); see also Ricci v. DeStefano, 557
U.S. 557, 577 (2009) (“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that
are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).”)
196 See Dothard v. Rawlinson, 433 U.S. 321, 327-32 (1977) (striking down Alabama Penitentiary System’s minimum height and weight requirements
for correctional counselors where there was no evidence correlating these traits to strength).
197 See Blake v. Los Angeles, 595 F.2d 1367, 1370-71 (9th Cir. 1979) (striking down height requirements used by the Los Angeles Police Department
because the requirements were not job-related and had a disparate impact on women).
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198 Notably, it was during the years immediately following these landmark suits, from the 1980s to early 1990s, that the gender wage gap shrunk the
fastest. See Hegewisch, supra note 18 (noting that the gender earnings gap narrowed by only 1.7 percentage points between 2004 and 2013,
compared to 3.1 percentage points in the previous ten-year period (1994 to 2003) and 9.7 percentage points during the ten years prior to that
(1984 to 1993)).
199 Consent Decree, Mueller v. Greyhound Lines West, No. C-74-1021 WHO (N.D. Cal. 1976).
200 See, e.g., Equal Emp’t Opportunity Comm’n v. Dial Corp., 469 F.3d 735, 742-43 (8th Cir. 2006) (striking down a strength test for sausage factory
workers where the test was not job-related, finding that it was more physically demanding than the actual job and had a gross disparate impact
on women); Legault v. Russo, 842 F. Supp. 1479, 1486-87 (D.N.H. 1994) (striking down physical agility test used by fire department where designer admitted that it favored men because it emphasized upper body strength and fire department could not show that it was job-related).
201 See Godfrey v. City of Chicago, 12 C 08601, 2013 WL 5405713 (N.D. Ill. Sept. 25, 2013) (brought by African-American women who passed the
firefighter written exam but failed the physical abilities test, as part of the remedial hiring process established as the result of a prior race discrimination lawsuit); Vasich v. City of Chicago, 11 C 04843, 2013 WL 80372 (N.D. Ill. Jan. 7, 2013).
202 United States v. San Francisco, 696 F. Supp. 1287, 1311-18 (N.D. Cal. 1988), aff’d, 890 F.2d 1438 (9th Cir. 1989).
203 Joanne Hayes-White was sworn in by former Mayor Gavin Newsom as the 25th Chief of the San Francisco Fire Department on January 16, 2004.
See http://sf-fire.org/index.aspx?page=152.
204 See Ariane Hegewisch & Stephanie Keller Hudibrug, Inst. for Women’s Policy Research, Fact Sheet #C414: The Gender Wage Gap by Occupation, 2013 3 (Apr. 2014), http://www.iwpr.org/publications/recent-publications (noting that the gender earnings ratio for full-time “retail salespersons” in 2013 was 67.5 percent, corresponding to $234 dollars less per week for women).
205 See Scott v. Family Dollar Stores, 733 F.3d 105 (4th Cir. 2013). The Supreme Court recently denied defendants’ petition for a writ of certiorari.
Family Dollar Stores, Inc. v. Scott, 2014 U.S. LEXIS 4625 (June 30, 2014).
206 In their amended complaint, the Scott plaintiffs allege that such policies and practices include, among other things: “a mandatory salary range for
Store Managers set annually by the corporate headquarters, which locks in prior disparities between male and female Store Managers’ compensation;” a policy of allowing only corporate Vice Presidents to grant exceptions above the salary range, coupled with a pattern or practice of
granting these exceptions “disproportionally in favor of men;” an annual pay raise percentage set by corporate headquarters that corresponds
to performance ratings, to which Regional Managers and Divisional Vice Presidents grant “significantly greater” exceptions above the pay raise
percentage to men; “built-in headwinds” in the form of corporate-imposed compensation criteria for Store Managers that have a disparate impact
on women; and a “dual-system of compensation” policy structured to pay less to persons promoted internally to Store Manager positions than to
persons hired from outside the company, which disfavors women. See Scott, 733 F.3d at 110.
207 See Ariane Hegewisch et al., Inst. for Women’s Policy Research, Briefing Paper #C377: Separate and Not Equal? Gender Segregation in the
Labor Market and the Gender Wage Gap 2 (Aug. 2010), http://www.iwpr.org/publications/pubs/separate-and-not-equal-gender-segregationin-the-labor-market-and-the-gender-wage-gap. Figure 1 shows trends in women’s share of wages in selected occupations that were male- or
female-dominated in 1972 and required less than a four-year college degree, and Figure 2 shows trends in occupations requiring at least a fouryear college degree. Id. For a summary of the historical arc in women’s representation in various professions and fields since the enactment of
the Equal Pay Act in 1963, see National Equal Pay Task Force, Fifty Years After the Equal Pay Act: Assessing the Past, Taking Stock of the Future
(June 2013), http://www.whitehouse.gov/sites/default/files/image/image_file/equal_pay-task_force_progress_report_june_10_2013.pdf.
208 See Wendy J. Thompson, An Overview of Select Disparate Treatment Title VII Cases Dismantling the Glass Ceiling (n.d.), http://www.stetson.edu/
law/conferences/highered/archive/2000/Dismantling_the_Glass_Ceiling.doc; see also U.S. Dep’t of Labor, A Solid Investment: Making Full Use of
the Nation’s Human Capital, Recommendations of the Federal Glass Ceiling Commission 4 (Nov. 1995), available at www.dol.gov/dol/aboutdol/
history/reich/reports/ceiling2.pdf, (defining the glass ceiling as “the unseen, yet unbreachable barrier that keeps minorities and women from rising
to the upper rungs of the corporate ladder, regardless of their qualifications or achievements.”).
209 See National Equal Pay Task Force, supra note 207, at 6 (citing U.S. Census Bureau data).
210 Id. (citing Bureau of Labor Statistics data).
211 Id. at 7, n.21.
212 See Stephen J. Rose & Heidi Hartmann, Inst. for Women’s Policy Research, Still a Man’s Labor Market: The Long-Term Earnings Gap 9 (2004)
(noting that when aggregated over a 15-year period comprising women’s prime earning years, women earn only 38 percent of what men earn);
see also Linda Babcock & Sarah Leschever, Women Don’t Ask: Negotiation and the Gender Divide (Princeton University Press 2003) (finding that
a 7.6 percent starting pay disparity of $4,000 between a hypothetical male and female employee, followed by 3 percent annual raises, would
evolve into a $15,000 annual disparity by age 60, resulting in the loss of a total of $361,171 to the female worker over the course of her employment life, and the gain of over $568,834 by the male employee, assuming he earns just 3 percent interest on the difference).
213 Jessica Arons, Ctr. for Am. Progress, Lifetime Losses: The Career Wage Gap 1 (2008), http://www.americanprogress.org/wp-content/uploads/
issues/2008/pdf/equal_pay.pdf. The median annual income for full-time, year-round women workers in 2012 was $37,791. U.S. Census Bureau,
Income, Poverty, and Health Insurance Coverage in the United States: 2012, 7 (Sept. 2013), http://www.census.gov/prod/2013pubs/p60-245.pdf.
214 See Nat’l Women’s Law Ctr., Closing the Wage Gap Is Crucial for Women of Color and Their Families (Nov. 2013), http://www.nwlc.org/sites/default/files/pdfs/2013.11.13_closing_the_wage_gap_is_crucial_for_woc_and_their_families.pdf (citing Bureau of Labor Statistics data).
215 Ariane Hegewisch & Heidi Hartmann, Inst. for Women’s Policy Research, Occupational Segregation and the Gender Wage Gap: A Job Half Done
Report #C419 (January 2014), available at http://www.iwpr.org/initiatives/pay-equity-and-discrimination/#publication.
216 Nat’l Women’s Law Ctr., 10 Reasons Raising the Minimum Wage to $10.10 Is a Women’s Issue 1 n.1 (Feb. 2014), http://www.nwlc.org/sites/default/files/pdfs/10.10_minimumwagefactsheet_green.pdf (citing U.S. Dep’t of Labor, Bureau of Labor Statistics, Characteristics of Minimum Wage
Workers: 2012, Table 1, http://www.bls.gov/cps/minwage2012tbls.htm).
217 See Paola Scommegna, Population Reference Bureau, Single Working Mothers in U.S. Worse Off Since the Recession (Feb. 2014), http://www.
prb.org/Publications/Articles/2014/single-working-mothers.aspx (discussing Population Reference Bureau analysis of data from the U.S. Census
Bureau’s American Community Survey (last visited May 11, 2014)).
Page 22
218 See U.S. Dep’t of Labor, Bureau of Labor Statistics, 20 Leading Occupations of Employed Women: 2010 Annual Averages (2010), http://www.
dol.gov/wb/factsheets/20lead2010.htm#.UJvvUtePzWI (showing that women comprise over 96 percent of secretaries and administrative assistants and nearly 93 percent of receptionists and information clerks).
219 See Hegewisch et al., supra note 207.
220Moss, supra note 190, at 3 n.12 (citing Christine Jolls, Accommodation Mandates, 53 Stan. L. Rev. 223, 293 Table 3 (2000)).
221 See Hegewisch et al., supra note 207. Interestingly, this phenomenon is particularly acute in jobs requiring higher educational levels. Id.
222 Weekly Earnings by Gender Composition of Jobs
Male-Dominated Occupations
(75% or more male)
Mixed Occupations
(25.1-74.9% female)
Female-Dominated Occupations
(75% or more female)
Wage Ratio
Low-skilled
$553
$435
$408
73.8%
Medium-skilled
$752
$735
$600
79.8%
$1,424
$1,160
$963
66.9%
High-skilled
223 Id.
224 See Hegewisch & Hudibrug, supra note 204, at 2 (in 2013, women comprised over 90 percent of full-time workers in two of the most common
clerical occupations, “secretaries and administrative assistants,” and “receptionists and information clerks”).
225 Marianne DelPo Kulow, Beyond the Paycheck Fairness Act: Mandatory Wage Disclosure Law—A Necessary Tool for Closing the Gender Wage
Gap, 50 Harv. J. on Legis. 385, 412-413. Under a comparable worth theory, instead of basing employees’ wage rates on prevailing market forces
or ad hoc, subjective criteria, employers would use objective criteria to compare and rank the skills, efforts, responsibilities, and working conditions required for different jobs and then “raise the wages of workers in all jobs or in female-dominated jobs deemed to be underpaid on the basis
of the evaluation.” See Elizabeth J. Wyman, The Current Framework of Sex/Gender Discrimination Law: The Unenforced Promise of Equal Pay
Acts: A National Problem and Possible Solution from Maine, 55 Me. L. Rev. 23, 49 (2003).
226 See, e.g., American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 720 (7th Cir. 1986) (“An employer … that simply pays the going wage …, and makes
no effort to discourage women from applying for particular jobs or to steer them toward particular jobs, would be justifiably surprised to discover
that it may be violating federal law because each wage rate and therefore the ratio between them have been found to be determined by cultural
or psychological factors attributable to the history of male domination of society.”); Fed’n of State, Cnty., & Mun. Emp. v. Washington, 770 F.2d
1401, 1407 (9th Cir. 1985) (“Neither law nor logic deems the free market system a suspect enterprise. Economic reality is that the value of a
particular job to an employer is but one factor influencing the rate of compensation for that job. Other considerations may include the availability
of workers willing to do the job and the effectiveness of collective bargaining in a particular industry.”); Christensen v. Iowa, 563 F.2d 353, 356 (8th
Cir. 1977) (rejecting “comparable worth” theory); see also Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007) (collecting cases
that have rejected the “comparable worth” theory).
227 See, e.g., Iowa Code § 70A.18; Minnesota Local Government Pay Equity Act, Minn. Stat. Ann. §§ 471.991 et seq.; Mont. Code Ann. 2-18-208.
228 See Bryce Covert, The Radical Movement to Close the Gender Wage Gap That You’ve Never Heard Of, Think Progress (May 1, 2014), http://
thinkprogress.org/economy/2014/05/01/3433335/pay-equity-gender-wage-gap/.
229 A “male-dominated” industry or occupation is generally defined as one that contains 25 percent or fewer women in total employment. See
Catalyst, Women in Male-Dominated Industries and Occupations in U.S. and Canada (Mar. 2013), http://www.catalyst.org/knowledge/women-male-dominated-industries-and-occupations-us-and-canada#footnoteref1_47mo3uo; see also Hegewisch & Hudibrug, supra note 204, at 1
(defining “male-dominated occupations” as “those in which at least three of four workers are men”).
230 U.S. Equal Emp’t Opportunity Comm’n, Glass Ceilings: The Status of Women as Officials and Managers in the Private Sector 5-6 (2004), http://
www.eeoc.gov/eeoc/statistics/reports/glassceiling/index.pdf (noting that while the percent of women officials and managers in the private sector
went up from just over 29 percent in 1990 to 36.4 percent in 2002, women’s representation in the labor market overall increased to 48 percent in
the same time period).
231 See Chad Brooks, When It Comes to Women in Management, U.S. Doesn’t Lead, Business News Daily (Mar. 11, 2014), www.businessnewsdaily.
com/6050-us-ranks-in-bottom-10-for-women-in-management-roles.html (citing the Grant Thornton International Business Report, Women in
Business: From Classroom to Boardroom, http://www.internationalbusinessreport.com/files/IBR2014_WiB_report_FINAL.pdf, which found that
the overall percentage of women holding senior roles in businesses across the globe (24 percent) has remained unchanged since 2007).
232 U.S. Dep’t of Labor, Bureau of Labor Statistics, Women in the Labor Force: A Databook 37, Table 10 (2013), http://www.bls.gov/cps/wlf-databook-2012.pdf.
233 Nat’l Women’s Law Ctr., Women in Construction 2 (2014) http://www.nwlc.org/sites/default/files/pdfs/final_nwlc_womeninconstruction_report.pdf.
234 See Timothy Casey, Legal Momentum, Still Excluded: There Are Still Virtually No Women in the Federally Created and Supervised Apprenticeship
System for the Skilled Construction Trades 2 (March 2013), http://www.legalmomentum.org/node/442.
235 Equal Employment Opportunity in Apprenticeship and Training, 43 Fed. Reg. 20760 (proposed May 12, 1978) (codified at 29 C.F.R. §§ 30.130.19).
236 A large body of legal scholarship is devoted to discussing these studies and how these findings have been or could be applied to Title VII cases
and other employment discrimination litigation. See, e.g., Judge Nancy Gertner & Melissa Hart, Implicit Bias in Employment Discrimination
Litigation (University of Colorado Law School, Legal Studies Research Paper Series, Working Paper No. 12-07, June 7, 2012); Tristin K. Green,
Discrimination in Workplace Dynamics Toward a Structural Account of Disparate Treatment Theory, 38 Harv. C.R.-C.L. L. Rev. 91, 95-99 (2003);
Gary Blasi, Advocacy against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. Rev. 1241 (2002); Ann C. McGinley, !Viva
La Evolucion!: Recognizing Unconscious Motive in Title VII, 9 Cornell J. L. & Pub. Pol’y 415, 421-26 (2000); Linda Hamilton Krieger, Civil Rights
Perestroika: Intergroup Relations after Affirmative Action, 86 Cal. L. Rev. 1251, 1258-76 (1998); Linda Hamilton Krieger, The Content of Our
Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1186-1211 (1995); David
Benjamin Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899, 902-15 (1993).
Page 23
237 See Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56 Ala. L. Rev. 741, 745 (2005); see also Catherine S. Manegold,
“Glass Ceiling” Is Pervasive, Secretary of Labor Contends, N.Y. Times, Sept. 27, 1994, at B1.
238 See Catalyst, supra note 229; see also Shankar Vedantam, How Stereotypes Can Drive Women to Quit Science, NPR (July 12, 2012, 4:58 PM),
http://www.npr.org/2012/07/12/156664337/stereotype-threat-why-women-quit-science-jobs.
239 A survey conducted by the National Association of Women Lawyers (NAWL) found that when a firm’s compensation committee has two or more
women members, the typical compensation for female equity partners is roughly on par with the typical compensation for male equity partners.
In firms without that level of gender representation on these key committees, the compensation gap is much wider. See National Association of
Women Lawyers, Report of the Eighth Annual NAWL National Survey on Retention and Promotion of Women in Law Firms (Feb. 25, 2014), http://
www.nawl.org/p/cm/ld/fid=82.
240 29 U.S.C. §§ 2501-09.
241 See Debbie Reed et al., Mathematica Policy Research, An Effectiveness Assessment and Cost-benefit Analysis of Registered Apprenticeship in
10 States (July 25, 2012).
242 H.R. 4515, 113th Cong. (2014).
243 See Hegewisch & Hudibrug, supra note 204, at 4.
244 See Bureau of Labor Statistics, supra note 188, Table 1 (reflecting that Black and Latina women are more than twice as likely as white women to
be living in poverty and more than twice as likely as white men to work in jobs that pay at or below the minimum wage).
245 See U.S. Dep’t of Labor, Women’s Employment During the Recovery 5 (May 3, 2011), http://www.dol.gov/_sec/media/reports/FemaleLaborForce/FemaleLaborForce.pdf (showing that, of the three major racial/ethnic groups, black women have the highest and Latina/Hispanic women
the lowest labor force participation rate). Black women continue to have the highest labor force participation rate out of all racial groups of women
workers. See U.S. Dep’t of Labor, Labor Force Statistics, Labor Force Statistics from the Current Population Survey (2014), http://www.bls.gov/
cps/cpsaat03.htm (Table 3: “Employment status of the civilian noninsitutional population by age, sex, and race), and http://www.bls.gov/cps/
cpsaat04.htm (Table 4: “Employment status of the Hispanic or Latino population by age and sex) (showing that 60 percent of Black women
participate in the labor force, compared to 57 percent of White, Latina/Hispanic, and Asian women). However, in 2012, Latina/Hispanic women
surpassed Black women as a percentage of the overall workforce, representing 13.7 percent of employees (compared with Black women at 12.8
percent and Asian women at 4.7 percent). See id. at Table 3; see also U.S. Dep’t of Labor, Women’s Bureau Fact Sheet, The Economic Status of
Women of Color: A Snapshot (2013), http://www.dol.gov/wb/media/reports/WB_WomenColorFactSheet.pdf.
246 See Drew Desilver, Pew Research Ctr., 5 Facts about the Minimum Wage (Dec. 4, 2013), http://www.pewresearch.org/fact-tank/2013/12/04/5facts-about-the-minimum-wage/.
247 See Heidi Shierholz, Economic Policy Institute, Economic Snapshot: Lagging Minimum Wage Is One Reason Why Most Americans’ Wages Have
Fallen Behind Productivity (July 11, 2013), http://www.epi.org/publication/lagging-minimum-wage-reason-americans-wages/.
248 See Nat’l Women’s Law Ctr., supra note 214, at 1.
249 See Bureau of Labor Statistics, supra note 188, Table 1.
250 See Rest. Opportunities Ctrs. United, Tipped Over the Edge, supra note 12.
251 Id.
252 See National Domestic Workers Alliance, Employment Protections for Domestic Workers: An Overview of Federal Law, available at http://www.
domesticworkers.org/sites/default/files/Domestic_Worker_Employment_Protections_Federal.pdf (last visited July 18, 2014); U.S. Dep’t of Labor,
Fact Sheet #25: Home Health Care and the Companionship Services Exemption Under the Fair Labor Standards Act (FLSA) (providing information about 2013 rule change that finally extended FLSA protections to home health care workers by changing the “companionship exemption”),
available at http://www.dol.gov/whd/regs/compliance/whdfsFinalRule.pdf.
253 See Alexandra Cawthorne, Ctr. for Am. Progress, The Straight Facts on Women in Poverty (Oct. 2008), http://www.americanprogress.org/
wp-content/uploads/issues/2008/10/pdf/women_poverty.pdf; Karen Kornbluh, The Wide Poverty Gap Between Women and Men, The Atlantic
(Nov. 7, 2012, 12:14 PM), http://www.theatlantic.com/sexes/archive/2012/11/the-wide-poverty-gap-between-women-and-men/264375/.
254 Annette Bernhardt et al., Nat’l Emp’t Law Project, Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s
Cities 30-35 (2009), http://www.nelp.org/page/-/brokenlaws/BrokenLawsReport2009.pdf?nocdn=1. In addition to finding that female-dominated
industries like child care, domestic service, and garment manufacturing had the highest rates of minimum wage and overtime violations, this seminal study of nearly 4,500 low-wage workers in several cities found that undocumented immigrant women suffer these violations at nearly twice the
rate of undocumented immigrant men, and more than 2.5 times as often as U.S. citizen women. Id. at 5.
255 See The White House, Office of the Press Secretary, Executive Order – Minimum Wage for Contractors (Feb. 12, 2014), http://www.whitehouse.
gov/the-press-office/2014/02/12/executive-order-minimum-wage-contractors.
256 See The White House, The Impact of Raising the Minimum Wage on Women And the Importance of Ensuring a Robust Tipped Minimum Wage, at
11 (Mar. 2014), http://www.whitehouse.gov/sites/default/files/docs/20140325minimumwageandwomenreportfinal.pdf.
257 Roberto M. Fernandez & Marie Louise Mors, Competing for Jobs: Labor Queues and Gender Sorting in the Hiring Process, 37 So. Sci. Research
1061-80 (2008); Barbara F. Reskin & Patricia A. Roos, Job Queues, Gender Queues: Explaining Women’s Inroads into Male Occupations (Temple
University Press 1990).
258 See Cecilia Rouse & Claudia Goldin, Orchestrating Impartiality: The Impact of ‘Blind’ Auditions on Female Musicians, 90 Am. Econ. Rev. 715-41
(2000); Joseph Stromberg, Are Scientists Sexist? New Study Identifies a Gender Bias, Smithsonian.com (Sept. 24, 2012), http://www.smithsonianmag.com/science-nature/are-scientists-sexist-new-study-identifies-a-gender-bias-47610982/?no-ist (discussing study on gender bias among
scientists in screening applicants for entry-level positions at labs); David Neumark, et al., Sex Discrimination in Restaurant Hiring: An Audit Study,
111 Q. J. Econ. 915-42 (1996) (finding women significantly less likely to be hired in higher paying restaurant jobs).
259 However, the “point of entry” in some jobs, such as the skilled trades (occupations in which women continue to be vastly underrepresented) may
start even earlier, at the apprenticeship stage. Under the National Apprenticeship Act of 1937, 29 U.S.C. § 50 et seq., apprenticeship programs
registered with the U.S. Department of Labor and state apprenticeship programs registered with recognized state apprenticeship agencies are
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prohibited from discriminating, and required to undertake affirmative action, on the bases of race, color, religion, national origin, and sex. To the
extent that an apprenticeship program is part of an employer’s or union’s employment training activities, it is also covered by Title VII. See 42
U.S.C. § 2000e-2(d).
260 Of the 284,108 individual charges of discrimination under Title VII received by the EEOC over the course of fiscal years 2010 through 2013,
115,606 (40.7 percent) included allegations of sex-based discrimination, and 15,648 (5.5 percent) alleged discrimination in hiring on any protected
basis. See U.S. Equal Emp’t Opportunity Comm’n (EEOC) Enforcement & Litigation Statistics, Title VII of the Civil Rights Act of 1964 Charges (includes concurrent charges with ADEA, ADA and EPA) FY 1997 - FY 2013, http://eeoc.gov/eeoc/statistics/enforcement/titlevii.cfm; EEOC Enforcement & Litigation Statistics, Sex-Based Charges FY 1997 - FY 2013, http://eeoc.gov/eeoc/statistics/enforcement/sex.cfm; EEOC Enforcement
& Litigation Statistics, Statutes by Issue FY 2010 - FY 2013, http://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm. However,
the total number of charges alleging sex-based discrimination in hiring under Title VII during this period was only 5,012 – less than 1.8 percent of
all discrimination charges filed. See EEOC Enforcement & Litigation Statistics, Bases by Issue, FY 2010 - FY 2013, http://www.eeoc.gov/eeoc/
statistics/enforcement/bases_by_issue.cfm.
261 See, e.g., Feliz Tarcomnicu, How the Hiring Process Has Changed over the Years, Huffington Post (May 31, 2013, 4:46 PM), http://www.huffingtonpost.com/felix-tarcomnicu/how-to-hiring-process-has_b_3364603.html.
262 To establish a prima facie case of discriminatory failure to hire under Title VII, a plaintiff must show that: (1) she belonged to a protected class; (2)
she applied and was qualified for a job for which applicants were sought; (3) despite being qualified, she was rejected; and (4) the position remained open with applications sought from persons having the plaintiff’s qualifications. See McDonnell Douglas, 411 U.S. at 802; accord Morgan
v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 325 (2003).
263 Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
264 See, e.g., Butler v. Home Depot, 1997 U.S. Dist. LEXIS 16296, *22-27 (N.D. Cal. Aug. 29, 1997) (denying summary judgment and finding plaintiffs
presented sufficient evidence to raise an inference of a pattern or practice of discrimination against women in hiring and promotions by relying on
a combination of statistical, sociological, and anecdotal evidence); Stender, 803 F. Supp. at 336 (holding that even where group members fall into
stereotypical gender patterns and are uninterested in certain positions, the employer must not discriminate against employees whose interests
deviate from the stereotype). Evidence showing a discriminatory or male-dominated work environment and/or that individual women faced
discriminatory treatment by the employer – for example, evidence that managers or other decision-makers expressed stereotypical views about
women – can support an inference or finding that the employer considered women to be less qualified for certain (traditionally male-dominated)
jobs. See Butler 1997 U.S. Dist. LEXIS 16296, at *24.
265 For a comprehensive critique of the interest defense as it has been applied in gender discrimination cases, and the Sears case in particular, see
Vicki Schultz, Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the
Lack of Interest Argument, 103 Harv. L. Rev. 1749, 1752-54 (1990); see also Harold S. Lewis & Elizabeth J. Norman, Employment Discrimination
Law & Practice 236 (2d ed. 2004) (arguing that the “self-selection” premise often works to the plaintiffs’ advantage when an employer asserts a
“lack of interest” defense but the actual numbers of hiring disparities contradict the employer’s theoretical estimates about who was interested
in the position). See also EEOC v. Gen. Telephone Co. of Northwest, Inc., 885 F.2d 575, 581 (9th Cir. 1989), cert. denied, 498 U.S. 950 (1990)
(rejecting the majority’s approach in Sears and finding that the decision conflicted with both the purpose of Title VII and holdings of other circuits).
266 EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 322 (7th Cir. 1988).
267Id.
268 The EEOC defines testers as “individuals who apply for employment which they do not intend to accept, for the sole purpose of uncovering
unlawful discriminatory hiring practices.” EEOC Policy Enforcement Guidance No. 915-002, Enforcement Guidance: Whether ‘testers’ can file
charges and litigate claims of employment discrimination (May 22, 1996), http://www.eeoc.gov/policy/docs/testers.html.
269 See Kathryn Lodato et al., Investigatory Testing as a Tool for Enforcing Civil Rights Statutes: Current Status and Issues for the Future 11, 13, (Public Law Research Inst., Univ. of California Hastings College of the Law, PLRI Working Papers Series 2004), http://gov.uchastings.edu/public-law/
docs/plri/testing.pdf.
270 42 U.S.C. § 2000e-6(a).
271 See General Tel. Co. v. EEOC, 446 U.S. 318, 325-26 (1980) (“The private action rights under § 706(f)(1) suggest that the EEOC is not merely a
proxy for the victims of discrimination[.]”); accord EEOC v. Hacienda Hotel, 881 F.2d 1504, 1510-12 (9th Cir. 1989).
272 See 42 U.S.C. § 2000e-5(f)(1); Gen. Telephone Co. v. EEOC, 446 U.S. at 326 (“When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.”). Section 706(f)(2) of Title VII also
establishes that, when a charge is filed and the EEOC concludes on the basis of preliminary investigation that prompt judicial action is necessary
to carry out the purposes of Title VII, the agency may bring an action for appropriate temporary or preliminary relief pending final disposition of the
charge. 42 U.S.C. § 2000e-5(f)(2).
273 See 42 U.S.C. § 2000e-5(f)(1); Gen. Telephone Co., 446 U.S. at 323-24.
274 While the EEOC currently collects some pay data from state and local government agencies for antidiscrimination enforcement, the agency has
only collected compensation data from private-sector employers on a case-by-case basis as necessary to support specific investigations. The
workforce data that the EEOC collects annually from private employers with more than 100 employees (and some federal contractors with fewer
employees), called “EEO-1 data,” is broken down only by job category, gender, race, and national origin, not by the actual pay rates or amount of
compensation paid to employees in different demographic categories. See 42 U.S.C. § 2000e-8 (recordkeeping requirement); 29 C.F.R. § 1602.7
(regulations on “Requirement for filing of report”); EEOC, Employer Information Report EEO-1 Instruction Booklet, http://www.eeoc.gov/employers/eeo1survey/2007instructions.cfm; see also Nat’l Women’s Law Ctr., 50 Years & Counting: The Unfinished Business of Achieving Fair Pay 11
(2013), http://www.nwlc.org/resource/50-years-counting-unfinished-business-achieving-fair-pay.
275 Indeed, EEOC Chair Jacqueline Berrien has acknowledged that the lack of access to “employer-specific pay data broken down by demographic
category” (including gender) is a “significant barrier” to the agency’s work to eradicate the “largely invisible” problem of pay discrimination. See
Nat’l Research Council, Comm. on Nat’l Statistics, Collecting Compensation Data from Employers 1-6 (Aug. 15, 2012).
276 Under current law private employers with 100 or more employees and all government contractors with 50 or more employees and at least
$50,000 in contracts must file annual Employment Information (EEO-1) Reports, reporting demographic data about their employees, categorized by race/ethnicity, gender, and job category. See 42 U.S.C. § 2000e-8; 29 C.F.R. § 1602.7. Subsection 2000e-8(e) prohibits the EEOC from
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making public the employment data derived from its compliance surveys. This rule against disclosure does not apply to federal government prime
contractors or first-tier subcontractors, but all requests for that data must go through the U.S. Department of Labor Office of Federal Contract
Compliance Programs (OFCCP). See EEOC, EEO-1 Frequently Asked Questions, Is EEO-1 data confidential?, http://www1.eeoc.gov/employers/
eeo1survey/faq.cfm?renderforprint=1 (last visited July 18, 2014).
277 The Uniform Guidelines on Employee Selection Procedures (UGESP), used by courts to determine if unlawful hiring practices were the basis of a
discrimination claim, could help to establish the categories of information sought by an expanded EEO-1 survey. See Society for Human Resource
Management, Applicant Tracking: Should all employers collect demographic data on applicants and employees? If so, when? (March 12, 2012),
http://www.shrm.org/templatestools/hrqa/pages/shouldemployerscollectdemodataonappsandemployees.aspx.
278 See Nat’l Research Council, Comm. on Nat’l Statistics, supra note 274, at 4.
279 In February 2014, President Obama issued a memorandum directing the Department of Labor to establish new regulations requiring federal contractors to submit data on compensation paid to their employees, including breaking down the data by gender and race. See The White House,
Office of the Press Secretary, Presidential Memorandum — Advancing Pay Equality Through Compensation Data Collection (Apr. 8, 2014), http://
www.whitehouse.gov/the-press-office/2014/04/08/presidential-memorandum-advancing-pay-equality-through-compensation-data.
280 29 U.S.C. §§ 151-169.
281 Nat’l Women’s Law Ctr., Fact Sheet: Combatting Punitive Pay Secrecy Policies (Apr. 2012), http://www.nwlc.org/sites/default/files/pdfs/paysecrecyfactsheet.pdf.
282See Sarah Lyons, Note, Why the Law Should Intervene to Disrupt Pay Secrecy Norms: Analyzing the Lilly Ledbetter Fair Pay Act Through the
Lens of Social Norms, 46 Colum. J. L. Soc. Probs. 361, 382 (2013); Cynthia Estlund, Just the Facts: The Case for Workplace Transparency, 63
Stan. L. Rev. 351, 388 (2011) (discussing “signaling problems” associated with employee requests for more information from their employers).
283 See S. 84, 113th Cong. (2013-14); H.R. 377, 113th Cong. (2013-14).
284 See supra notes 243-244.
285 See Michael J. Yelnosky, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level
Jobs, 26 U. Mich. J.L. Ref. 403 (1993).
286 See Alliance for Justice, Arbitration Activism: How the Corporate Court Helps Business Evade Our Civil Justice System 12-15 (2013), http://www.
afj.org/wp-content/uploads/2013/12/Arbitration-Activism-Report-12162013.pdf.
287 See, e.g., Catherine Fisk & Erwin Chemerinsky, The Failing Faith in Class Actions: Wal-Mart v. Dukes and AT&T Mobility v. Concepcion, 7 Duke J.
Const. Law & Pub. Pol’y 73, 96 (2011) (“The class action is an integral part of the enforcement scheme under both state and federal wage and
hour law. In an area of law beset by under enforcement, especially in low-wage sectors, to remove the class action would be to eliminate the only
effective mechanism for effectuating these statutes.”).
288 S. 3317, 112th Cong. (2012); H.R. 5978, 112th Cong. (2012).
289 S. 878, 113th Cong. (2013-14); H.R. 1844, 113th Cong. (2013-14).
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