By Bryce Covert
We need more equal pay litigation, not less.Yesterday the Senate proved two things: a majority of senators think women need more support in their quest to be paid equally with men, but that's not enough to actually get them support in the face of a GOP that stubbornly stands in the way. It may seem pretty tough to side with unequal pay for equal work, yet that's where 47 senators stand. The biggest concern offered that they offered up after they blocked the Paycheck Fairness Act? That the bill would have led to an unnecessary and soul-crushing number of lawsuits against employers. But the country actually needs to see more lawsuits against the gender wage gap, not fewer.
Some feel that women are adequately protected from pay discrimination, since we have laws saying it's illegal to pay women less than men for the same work, and therefore this Act was redundant. They should think again. Sen. Suzanne Collins was absolutely right when she told reporters after the vote, "We already have on the books the Equal Pay Act, the Civil Rights Act and the Lilly Ledbetter Act, which I did support." But her claims that those laws "provide adequate protections" and "existing laws are adequate" don't really stand up to scrutiny.
It is of course illegal to pay women less than men for the same work under current law. But that doesn't mean the pay gap has gone away or that women have all the power they need to fight back against discrimination. Even after President Obama signed the Lilly Ledbetter Act into law, which gives women more time to file lawsuits against employers they suspect of discrimination, the wage gap has actually widened slightly. In 2007, before Ledbetter was law, it stood at 77.8 percent. Come 2010 women made just 77.4 cents to a man's dollar.
This gap can't just be explained by "personal decisions that women make to leave the workforce to raise children…and then to return to the workforce," as Collins postulated. In fact, a couple of studies have found no other way to explain at least some of the gap than discrimination. A GAO report stripped out differences in work patterns (experience or time in the workforce among them), job tenure, industry, occupation, race, and marital status. While some of the gap can be attributed to those factors, it still found women make 80 percent of a man's dollar. It had no choice but to theorize that the rest is at least partly due to pure discrimination. Another study by Francie Blau and Lawrence Kahn in 2007 found that after stripping out similar factors, women make 91 cents to the dollar. The researchers were also forced to chalk up the remaining gap to discrimination.
But even worse than all of that, the number of pay discrimination complaints filed with the Equal Employment Opportunity Commission actually fell after the Lilly Ledbetter Act was signed, dropping from 2,268 to 2,191 last year. Even under current laws, women have found themselves with decreasing legal support when they file a complaint. As Irin Carmon reported, recent analysis found that courts have become more hostile over the past decade - not more accommodating or sympathetic, as the Republicans seem to fear - to equal pay claims. The authors found that from 2000 to 2009, those who filed claims were only successful 35 percent of the time, compared to a 55 percent success rate from 1990 to 1999. They also found that, as Carmon explains, "courts have generally been reluctant to intervene in a company's decision to pay someone less, operating on the assumption that the market is working."
Some high-profile cases may prove the point. Almost exactly a year ago the Supreme Court knocked down a suit against Wal-Mart, handing down a decision that makes it even harder to bring these cases by raising the bar for women who seek to qualify as a class. Meanwhile, a recent discrimination suit filed against Kleiner Perkins Caufield & Byers by junior partner Ellen Pao has already been met with rank and blatant sexism. That doesn't make for an optimistic outlook on women's ability to bring cases and be taken seriously when they've been unfairly underpaid.
All of those figures throw some cold water on the GOP's claims that the Paycheck Fairness Act is just a "welfare plan for trial lawyers," as Sen. Marco Rubio put it. (His sentiment was echoed by many of his fellow Republicans.) Given the falling number of claims and hostile courts in the face of a gap that is only getting worse, it would seem the number of cases could stand to get a boost. Too bad the GOP's obstruction yesterday means that probably won't be the case.
More on Forbes.com
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A New Obstacle For Professional Women: The Glass Escalator
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By Bryce Covert