Happy 40th Anniversary, Equal Pay Act

This week marks the 40th anniversary of the Equal Pay Act, landmark legislation which help pave the way for increased gender equality in the workplace. On June 10, 1963, President Kennedy signed the Equal Pay Act (EPA) into law, at a time when full-time working women were paid on average 59 cents to the dollar earned by their male counterparts, according to government data. (See The Equal Pay Act Turns 40). President Kennedy, at the White House signing ceremony, said the EPA: “Adds to our laws another structure basic to democracy” and “affirms our determination that when women enter the labor force they will find equality in their pay envelope.” While as the Virginia Slims ads used to say, “you’ve come a long way baby,” it’s clear that even after 40 years, there is more ground to cover if women are to close the pay gap in the workplace.

The Equal Pay Act predated the passage of Title VII, the Civil Rights Act of 1964, by one year. In the debate before Congress on the bill, supporters argued that the bill would confer economic benefits on the nation at large, and that passage was also a matter of equality. (See Quotations from the Congressional Debate.) As Congresswoman Florence Dwyer of New Jersey pointed out,

Passage of a meaningful equal pay bill will end a long and unfortunate pattern of discrimination against women and it will place the Federal Government in the same desirable position as the 20 states which have enacted equal pay laws. It will help all areas of the economy, men as well as women, by stabilizing wage rates, increasing job security, and discouraging the replacement of men with women at lower rates of pay.

Debate on the bill also reflected one of the concerns on everyone’s list at the time: beating the Russians.

Khrushchev has predicted that by 1970 Russia will overtake this country economically. We need all the incentive that we can provide to the labor force of this Nation to keep America superior in economic power and progress in the free world today.

(Congressman Pepper) Supporters also pointed out the benefits also accruing to males by the law’s guarantees.

Another desirable product of this legislation would be discontinuance of the process of allowing unscrupulous employers to profit by exploiting women for the purpose of gaining a competitive advantage, while at the same time rejecting the services of men to whom they would have to pay better wages. Thus this legislation would establish fair play in the area of employment and wages for both men and women…”

(Congressman Rivers). The bill was not without its opponents, however. One member of Congress noted,

This bill does not take into account the higher cost, averaging about 30 cents an hour, involved in the employment of women. This is due to greater turnover and absenteeism, State laws limiting hours of employment of women and placing restrictions on lifting, longer lunch and relief periods for women, higher insurance rates for women, and the cost of providing women with special facilities

One group opposed to the legislation, the National Retail Merchant Association, expressed concern that employers would have to provide women with “additional facilities such as seats, lunchroooms, and toilet rooms.” (Pretty outrageous stuff, I guess it seemed at the time.) However, the legislation ultimately passed through Congress, was signed by President Kennedy, and still exists today as the oldest law enforced by the Equal Employment Opportunity Commission (EEOC). (The EPA was enforced by the Department of Labor between 1963 and 1979.)

The Equal Pay Act simply states:

No employer having employees subject to any provisions of this section 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 and they 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…

Some facts about the EPA:

• It is unlawful for employers to reduce the wages of either sex to equalize pay between men and women;
• A violation may occur where a different wage is paid to a person who worked in the same job before or after an employee of the opposite sex;

• A violation may also take place where a labor union causes the employer to violate the law;

• An employer is permitted to base salary differences on seniority, merit, and quantity or quality of production – in fact, generally any other business-related factor, as long as it is not based on a person’s sex; and

• Employers found in violation of the EPA can be compelled to pay back pay, punitive relief, and liquidated damages if the violation is shown to be willful.

For more information about pay discrimination, see our web site’s page on sex/gender discrimination. And for highlights of some key Equal Pay Act cases brought by the EEOC, see Highlights of Equal Pay Act Cases. EEOC Chair Cari Dominguez released the following statement on Thursday, June 10, in observance of the EPA’s 40th anniversary:

Since its enactment on June 10, 1963, the Equal Pay Act has withstood the test of time and has been helping to pave the way for equality in the workplace for four decades. When the EPA was signed into law 40 years ago, the American labor force was radically different than the one we see today. Women have slowly climbed the corporate ladder and made in-roads to many traditionally male dominated professions. Although pay discrimination still rears its ugly head in the 21st century workplace, the EPA continues to be an effective force to remedy and deter such injustices.

Employers should continue to be vigilant in preventing EPA violations and proactive in breaking down workplace barriers that operate to exclude on the basis of gender. We continue to see cases of blatant pay discrimination between men and women doing equal work. We continue to see cases of wage discrimination against people of color as well as individuals with disabilities. This should not be tolerated in the year 2003. Pay discrimination depresses the wages of working men and women and the families who rely on them for support. It also creates marketplace inefficiencies by not making optimum use of available labor resources.

The Commission is firmly committed to the task of ensuring that all individuals have the freedom to compete and advance in the workplace on a level playing field. Strong enforcement of the EPA, coupled with vigorous education and outreach, remains a key component of ensuring equality of opportunity in the workplace. As we observe this 40th anniversary of the Equal Pay Act, let us recommit to its principles and vision: a workplace that is fair and inclusive in all its aspects.

But where do we go from here? How relevant is the Equal Pay Act today? The wage gap between male and female employees still exists, and although some improvement was shown in this past year, many decry the lack of significant progress in closing the gap. (See Wage Gap Continues.)

A new study also reaches some interesting conclusions about how men and women negotiate pay. (See Study: Men negotiate better pay) Professor Lisa Barron, of the UC-Irvine Graduate School of Management, found that women who negotiate job offers generally ask for lower initial salaries than do men, in part because of different beliefs about worth, entitlement and proving oneself. (See UC-Irvine News Release.) The study included realistic mock negotiations between 38 “new hires” and four professional women recruiters for a mock position offering a salary of $61,000. After the negotiations, Barron interviewed the “new hires” to understand why the men tended to ask for higher salaries than women. She found that 71 percent of the men said they believed they were entitled to more money than other job prospects. Conversely, 70 percent of the women indicated they were entitled to a salary equal to other job candidates.

The study’s results should not be cited in support of the conclusion that pay discrimination is all a result of gender differences in pay negotiations, and that no pay discrimination exists. A very limited study of a small number of MBA students is certainly not reflective of all that is happening in the workplace today. It does remind us, however, that the gender gap and continued lack of true equal pay, even after 40 years of the EPA’s protections, is a multi-faceted and at times, seemingly intractable problem. Only through continued research of its dimensions and ongoing vigilance can we hope to erase it, even in the next 40 years.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.