University Times

Wages for average working women in the region and the nation continue to lag behind their male counterparts. To explore the causes of the pay gap — and efforts to eliminate the disparity — Pitt hosted a daylong conference Feb. 20 titled “The Gender Wage Gap: Strategies for the Future.” Featured were two keynote speakers; panel sessions on the current research data and legal and public policy responses, and testimonials from Pitt alumnae offering strategies for women to succeed in the workplace and close the wage gap.

The conference, which attracted wage-disparity scholars and researchers and advocates of equal-pay policy at the local and regional levels, was sponsored by Pitt’s School of Law, the University Center for Social and Urban Research (UCSUR), the Graduate School of Public and International Affairs and the College of General Studies.

According to a 2007 UCSUR study, between 1970 and 1990 the female labor force participation rate in the United States increased from 43.3 to 59.9 percent. But “despite increases in the number of female workers and female labor force participation rates over the past few decades, earnings of women workers have been slow to converge with male earnings,” the report states.

In 2004, full-time U.S. female workers earned 76.5 percent of men’s earnings, an improvement from approximately the 60 percent of men’s earnings level that persisted through the early 1980s. Data also show that the gender wage gap in Pittsburgh appears to be larger than most other metropolitan regions, with local women earning 74 cents on the dollar compared to men.

The conference tackled a number of issues that the gender pay gap raises.

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Following keynote speeches by Jocelyn Frye and Linda Babcock, a Carnegie Mellon professor of economics and co-author of the book “Women Don’t Ask: Negotiation and the Gender Divide,” a panel discussion examined legislative and grassroots efforts to promote equal pay.

Panelists at the law and public policy forum were:

• Pitt law professor Deborah Brake, a nationally recognized scholar on gender discrimination who co-authored an amicus brief in the Supreme Court’s Ledbetter v. Goodyear Tire and Rubber Co. case. That case eventually led to the passage of the Lilly Ledbetter Fair Pay Act, the first piece of legislation signed by President Obama. (See University Times, June 14, 2007.)

• Brian Litzinger, legal counsel to state Sen. Jane C. Orie (R-McCandless).

• Selena Schmidt, chief of staff for Pittsburgh City Council President Doug Shields.

• Heather Arnet, executive director of the Women and Girls Foundation and a Pittsburgh Public Schools board member.
Conference invitees Orie and Shields were unable to attend due to schedule conflicts.

Susan Frietsche, a senior staff attorney at the Women’s Law Project, a nonprofit legal advocacy organization for women, moderated the discussion.

In her introductory remarks, Frietsche ticked off a litany of possible contributing factors to the nationwide gender pay gap.

Among the factors, she said, are: outright sex discrimination, including widespread gender stereotypes supporting the view that men need and deserve higher wages than women; wage secrecy; women opting out of careers to raise children; the failure of employers to offer family-friendly policies; the failure of government and policy makers to encourage those kinds of policies; sex-segregated jobs, where women are concentrated heavily in just a few categories that always pay less than men’s jobs; sexual harassment, which damages women’s careers and prevents them from advancing in the workplace, and the difficulty women have compared to men with negotiating for higher pay.

“This conference is encouraging as a way to shine a very much needed light on the issue of the gender wage gap and encouraging us to look to constructive ways to address the issue, ” Frietsche said. “The information presented at this conference [so far] has been illuminating, but also a little upsetting and depressing. At the current rate, we will be holding gender pay gap conferences well into the next generation. We must find a solution and we must find it in our lifetime, before we leave this terrible form of inequity to our daughters.”

Although passage of the Lilly Ledbetter Fair Pay Act was a clear victory for advocates of equal pay for women and men, it likely will not end gender pay disparities, the Title VII legal scholar said. “We still have the need for stronger equal-pay federal laws,” Brake said.

Partly that need continues because of the difficulty of establishing employment discrimination based on gender.

Brake noted that opponents of equal-pay legislation cite employers’ rights to evaluate employees; say that the gender gap is not due to discrimination of women, and maintain that when work experience, education and type of occupation are taken into account, the gap virtually disappears.

Not so, said Brake. According to 2004 statistics from the Department of Labor, on average female lawyers earn 73 percent of male lawyers’ wages, she said.

For lawyers, the gap has been attributed to factors such as women working fewer hours and to legal specializations women choose.

“But looking closer, among lawyers it’s not just choices, not just the specialization, say, that more women attorneys go into family law, which is lower paying, and it’s not just the hours worked, when women lawyers spend more time with family responsibilities,” Brake said. “The problem exists even after controlling for other factors. Nonetheless, it’s also difficult to say the disparity is due to discrimination, because the courts have taken a narrow view on what counts as discrimination.”

Ledbetter was an unlikely case to galvanize the issue of gender pay disparities, because it was decided on a technical procedural ruling under Title VII, Brake noted. The ruling hinged on interpreting when the 180-day statute of limitations for filing a claim of sex discrimination begins. The Supreme Court ruled that Ledbetter, who was paid less than her male counterparts over a 19-year career at Goodyear, should have filed suit within 180 days of her first unfair paycheck, not 180 days from the time she learned of the disparity in pay.

The Ledbetter Fair Pay Act now defines as illegal “paying an employee less solely on the basis of sex.”

“It truly is a victory and it is something to celebrate, which I want to make clear before I make my next point, which is: We’re nowhere near done,” Brake said. “The Ledbetter decision overturned a terrible wrong that had set back the law. But a lot of things are left undone. The most troubling thing is that the courts have taken a very narrow view on what counts as discrimination: It is only discrimination when there is an intentional decision to pay a woman less based on sex.”

So a legal complaint needs to prove a conscious act by an individual who is biased against women. Instead of classifying the practice itself as unlawful, the courts say a suit must prove a conscious act of discrimination.

“Lilly Ledbetter was being paid less for no justifiable reason: not seniority, not performance, not any merit-based reason. That is sex discrimination,” Brake said.

She added that the Ledbetter Fair Pay Act does a better job in buoying discrimination claims because it does not require that the discrimination be intentional.

“But the courts are very strict in requiring the ‘substantially equal work’ standard. The jobs have to be so much the same,” Brake said. “Under that standard, coaching two different sports is not doing the same job. She’s coaching volleyball, he’s coaching baseball; it’s not the same. If there are any subtle differences, such as he’s a vice president of something versus she’s a vice president of something else, they’re not the same jobs.”

That reading of the law tends to favor emphasizing other factors in pay decisions. The courts will say that anything other than intentional animus will suffice for justifying pay differences.

One attempted legal remedy was the Fair Pay Act, a predecessor to the Ledbetter law, which was introduced in 2007 but never passed Congress, Brake said. Under that proposed legislation, employers could not pay jobs that predominantly were held by women less than jobs predominantly held by men if those jobs were equivalent in value to the employer. Employers also would be required to provide yearly reports to the Equal Employment Opportunity Commission (EEOC) that break down their workforce by salary, gender, race and ethnicity.

In January, Congress began considering a similar law, the Paycheck Fairness Act, which passed the House of Representatives and now is being debated in the Senate. That law would expand damages under the Equal Pay Act of 1963. It also calls for a study of data collected by the EEOC and proposes voluntary guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities.

“The Paycheck Fairness Act would help a little bit,” Brake said. “Although employers very rarely lose federal discrimination cases because of the difficulty of proof, it might incentivize employers to examine their pay systems” and correct gender pay disparities, she said.

“This issue has been critical to Sen. Orie for many years,” said Litzinger, who read a statement from Orie.

According to Orie, Litzinger said, “Women work for pay in greater numbers, in more occupations and for more years than ever before yet they still make less than their male counterparts.”

Although the wage gap has narrowed from the days of women being paid on average 58 cents on the dollar compared to men, women’s wages have remained stuck between 77 cents and 78 cents on the dollar since 2001.

“A new report from the Keystone Research Center finds that in recent years, even before the current economic crisis, the progress of women in the Pennsylvania workforce came to a grinding halt,” Orie stated. “The KRC found that in the 1980s and ’90s, the 47 percent of the Pennsylvania workforce that is female made great strides. Since 2003, Pennsylvania women actually have lost ground.”

While the numbers of women in traditionally male dominant fields, such as law, medicine and accounting, continue to increase, the rising proportion does not carry over to the highest-paid jobs.

“Women remain largely locked out of the highest-paying managerial positions because of the ceiling that continues to permeate the working world,” Orie stated. “Many women also remain in the lowest-paying jobs: housekeeping, restaurant service, care-giving and other fields. The wage gap hurts women, families and children and it’s something we must do something about because it flies in the face of fairness.”

For these reasons, Orie is sponsoring a state Senate resolution urging the U.S. Congress to study the issue of workplace pay disparity.

“My resolution would also direct the Joint State Government Commission to examine the issue and revisit state law related to that issue and make recommendations to the [Pennsylvania] General Assembly,” the senator stated.

She applauded the progress signaled by passage of the Ledbetter Fair Pay Act and supported passage of the Paycheck Fairness Act. “These acts would amend the Fair Labor Standards Act of 1938 by strengthening the provisions of the Equal Pay Act of 1963 and further expand damages under Title VII of the Civil Rights Act of 1964,” according to Orie.

Orie is focusing particularly on changing Pennsylvania law to prohibit discrimination in employment based on marital or family status.

“We need to amend the Pennsylvania Human Relations Act, by making it unlawful to discriminate against prospective employees on the basis of marital or family status during the interviewing or hiring process,” she stated.

“I have personally spoken to numerous women who have been discriminated against during the interviewing and hiring process by being asked: Are you married? Do you have children? Are you planning to have children? It is contemptible to think that depending on the way a woman answers those questions she could lose an opportunity for gainful employment.”

Other states, such as New York and New Jersey, already have banned the practice, she noted.

On April 28, Orie plans to join some of her Harrisburg colleagues at the Equal Pay Day rally, “to draw attention to the persistent gaps in pay between men and women and to show support for national efforts to close those gaps. Equal Pay Day is the annual reminder of the shameful fact that it takes the average woman nearly four months into the following year to catch up with what men earned in the previous year. We must do more to see that women earn what they deserve based on the job, not on gender,” Orie stated.

Litzinger added to Orie’s statement that there is a pressing need for more women to enter the political arena at the state level. “Our legislature is pretty close to the national average on the Senate side,” he said. “The national average of state legislatures [overall] is about 23-25 percent women. In Pennsylvania it’s 20 percent. On the House side, there are 27 women out of 203 representatives, so we lag behind there. What we need are more women candidates to take office.”

Schmidt touted the efforts of her boss Doug Shields to end gender- and race-based wage disparities.

After fielding several complaints from female city workers who had discovered pay gaps that didn’t reflect seniority, level of education or job performance, Shields went into action, Schmidt said.

“As a husband and father of a daughter, he has always been concerned with these issues,” she said.

But because these complaints were anecdotal, Shields told Schmidt, “We as a region have got to say, ‘This is not okay.’ But let’s get the facts. How do we go about this? How does it impact our population loss? What are other effects to the region?”

Schmidt said, “The worst-case scenario is there is a system-wide disparity. The best-case scenario is we don’t know if there is a system-wide disparity.”

So Shields, after much arm-twisting, got City Council to commission a study of the city payroll, which is being conducted by an independent Florida firm. A report is due in April, Schmidt said.

“These studies at the very least create new levels of awareness. If we discover anomalies then we’ll look at where we can change policies,” she said. “There also may be more lawsuits that arise from the study. To be fair, making change is hard. I prefer the carrot to the stick, but lawsuits might make [pay parity] happen quicker. They might also prompt the county to say, ‘We’d better look at this, too.’”

In the last five years, the Women and Girls Foundation has helped to pass eight gender-pay equity pieces of legislation and has awarded more than $500,000 in grants to other organizations and agencies that advocate for women’s and girls’ rights. At the grassroots level, the foundation supports the annual Equal Pay Day rally, this year to be held Downtown April 28.

Among the projects the foundation supported was funding the citywide study backed by council member Shields. “We had been concerned about wage gaps among city employees and we supported a gender and race wage equity audit to learn the data. Not just look at the gaps in numbers, but to look at the whole structure of employment in the city and to have the roadmap for how we can improve that structure,” Arnet said.

“We’re strong believers in the power of advocacy, of coalition-building and the effectiveness of lobbying,” she said. “Our mission is to build small groups into coalitions pursuing the goal of gender equity. Why the wage gap exists is a key priority for the foundation.”

Regardless of what the data from the city employment survey show, she said, the hope is the Pittsburgh study will become a model that is duplicated at the county and state levels as well as a model for corporations.

“The intention was not to expose the gap. Our intention was to partner with the city to do a better job. If the data show a significant wage gap, the story becomes: Pittsburgh knew it had a problem and did something about it. If the data show there isn’t a problem, that’s also a major story. The headlines across the country would read: ‘Pittsburgh does not have a gender wage gap.’ You can’t buy P.R. like that,” Arnet said.

“This is not about complaining. This is about solutions. We want these issues in the public discourse: How do you change social mores?” she said.

“We need to re-frame the issue and explain why it is not a women’s issue, but a regional economic issue. The majority of new college graduates are women and women are growing in the workforce. The majority of most companies’ customers are female. So it’s good business to market to females. There’s no reason why you should not be thinking about how you can attract and retain women in your workforce. Without addressing the gender wage pay gap, the region will fail economically.”

—Peter Hart