Comparable Worth: Far From Dead : The Job Can Be Done in Legislatures and in Bargaining

The reports of the death of comparable worth are greatly exaggerated. The appellate ruling last week that overturned a judgment against the state of Washington is unsatisfactory on legal and philosophical grounds, but hardly surprising. Comparable worth remains a worthy cause, and, rather than be buried, it will be carried into other arenas.

The American Federation of State, County and Municipal Employees sued the state of Washington on behalf of its female employees. The union claimed that the state had committed employment discrimination because it knowingly paid wages for jobs held predominantly by women 20% less (on average) than for jobs held predominantly by men. The union won the trial, but the 9th U.S. Circuit Court of Appeals reversed that judgment. Characterizing the case as a claim for comparable worth, the court ruled that an employer is free to pay labor market rates for jobs, even if those rates reflect discrimination by society at large. It was irrelevant to the court that a typically female job, like nurse, might require greater skill, effort and responsibility--yet be paid less--than a male job, like forest ranger.

The decision is open to criticism on two legal grounds:

First, the union presented considerable evidence that the state had intentionally underpaid women. The trial judge was persuaded by this evidence, but the court of appeals ignored it without explanation.

Second, the union satisfied the trial judge that the state’s compensation policy adversely affected women because male jobs were paid better than female jobs. The court of appeals rejected this demonstration, saying that adverse impact analysis “is confined to cases which challenge a specific, clearly delineated employment practice applied at a single point in the job-selection process.” But the court did not explain why adverse impact should be so limited, and no sound reason is readily apparent. Establishing the pay rate for a job would seem to qualify as a “specific, clearly defined employment practice” that is applied at identifiable points in time. Compensation is not part of a selection process, but the law prohibits discrimination in all aspects of the employment relationship, not merely selection.

On philosophical grounds the court allowed a hypothesis to blind it to the facts. By holding that it is not sex discrimination for an employer to pay labor market rates for jobs, the court accepted the hypothesis that male and female workers compete with one another for their work. This hypothesis is an aspect of the broader hypothesis that compensation is determined by the supply of and demand for labor. For many purposes it is a good hypothesis, but, like any other hypothesis, it is subject to limitation by new facts that it does not explain.

In the case of comparable worth the new fact is that jobs in America are effectively segregated by sex. Two-thirds of all employees work in occupations that are held predominantly by members of their own sex. Of course, men’s jobs are more prestigious, more satisfying and better paid than women’s jobs. It is a sexist myth that women voluntarily choose to be the underclass in the labor class, just as it was a racist myth that blacks were content to be slaves. The truth is that, through a complex process that begins at birth, our society channels women into sex roles that lead to women’s jobs. The result is a dual labor market segregated by sex. As a practical matter, men and women rarely compete for the same jobs.

Just as medieval thinkers misunderstood the cause of fire because their hypothesis was built around an imaginary element, phlogiston, so the false hypothesis of free competition for jobs prevented the court of appeals from understanding the reality of the dual labor market. One who understands this reality can only conclude that women earn less than men do because society discriminates against women.

The court’s error is not surprising. Every other federal court that has ruled on comparable worth has reached the same conclusion. This unanimity may disappoint those who hoped to establish comparable worth at a single stroke, but they should have realized that the judiciary is more conservative than it was 10 years ago. The days when judges ordered reapportionment of state legislatures or abortion on demand are gone.

Nonetheless, the unwillingness of the courts to mandate comparable worth should not discourage feminists. The principle of equal pay for jobs of comparable worth has been adopted by the International Labor Organization and many nations, which recognize that sex discrimination is the cause of the dual labor market. This principle will be recognized in America as well. Indeed, the process of recognition has begun. A number of state and local governments (including the state of Washington) have acknowledged that underpayment of women’s work is a form of sex discrimination; some of these governments are studying methods for fairly setting the pay of their female employees, and others have implemented reforms toward this end. Also, labor unions such as the American Federation of State, County and Municipal Employees have taken comparable worth to the bargaining table, and in many cases (Los Angeles is one) real progress has been made.

Judicial conservativism will no more stem the tide of comparable worth than Canute could turn back the sea. But women must cease looking for a quick and easy victory. The job can be done--perhaps should be done--in the legislatures and at the bargaining table. These arenas are well designed for the adjustment of competing interests. So long as women (and their allies) do not lose heart, the outcome is as certain as it is right.