Elusive Equality in the Equal Pay Act
By Katherine Turk | June 7, 2023
The Equal Pay Act of 1963 (EPA), which bans employers from sex-based wage discrimination for “equal work” in jobs requiring “equal skill, effort, and responsibility” with “similar working conditions,” was the first in a decade of federal laws meant to open full economic citizenship to American women. Sixty years later, the nation’s economic landscape is crowded with inequalities. For every dollar paid to a man, a woman earns 77 cents, shortchanging their sex by almost $1.6 trillion each year. Women do not shoulder this burden equally. When a white, non-Hispanic man earns a dollar, a Black woman earns 64 cents and a Latina earns 54 cents.
Why have equal rights protections thrived alongside gaping wage disparities? The answer lies in the historic structures of American work and the contested meanings of equality, both at the EPA’s inception and today.
Pay Reflects Racial and Gender Hierarchies
There has never been a neutral market that aligned wages with labor’s worth. Instead, pay practices have reflected the racial and gender hierarchies of workers’ identities. These hierarchies emerged from the forced extraction of labor in slavery and the unpaid labor women traditionally shouldered in their own homes or for a pittance in other’s.
Early twentieth century reformers reinforced these hierarchies. Pointing to the abuses of industrial labor, they pursued “protective” state labor laws that effectively excluded women from well-paying jobs. Two decades later, the New Deal’s architects used federal policy to shore up white men’s right to be breadwinners and omitted the work performed by most women and many men of color. State laws enshrined gender and racial inequality at work, and the New Deal cemented that foundation at the federal level.
The nascent movement for sex equality began to flourish in the 1960s, stemming from the era’s broader push for human and civil rights. Workers and advocates debated the meaning of equality and how to achieve it. Proponents of women’s rights agreed that federal legislation was needed. In 1960, the gendered pay gap had women earning 60 cents to every man’s dollar. Women’s workforce participation was rising rapidly, and in a starkly segmented labor force, their three most common jobs were the feminized roles of office clerk, sales clerk, and secretary.
Advocates of equal pay legislation understood that the law’s terms would shape its reach. When Congresswoman Edith Green first introduced the Equal Protection Act in 1961, she proposed equal pay for “work of comparable character.” Green and other advocates of this expansive language wanted the law to reach every corner of the labor force. Evaluating jobs of “comparable character” would have meant that wage differences amongst gender-segregated positions within a workplace would have been recalculated. Many women would have their wages raised.
Employers opposed the legislation as government overreach into business prerogatives, but opponents of the comparability standard also included some advocates of sex equality.
Congresswoman Katherine St. George argued that the comparability language harkened “back to that good old adage that women are so weak that they need protection.” Instead, St. George claimed, “what we really want is equality…[and] equal implies no difference.” She introduced an amendment to the EPA substituting the stricter “for equal work” in place of “for work of comparable character.” The law was eventually passed in June 1963 with that standard.
The Limits of the Equal Protection Act
When the EPA took effect, federal agencies and courts began to interpret and implement it. By 1979, the Department of Labor had used the EPA to recover $162,063,460 on behalf of 269,600 underpaid workers. In the first EPA case appeal, Schultz v. Wheaton Glass Company, the Third Circuit Court ruled in 1969 that the law applied to jobs that were “substantially equal,” not just identical. Five years later, the U.S. Supreme Court held in Corning Glass v. Brennan that paying differential wage rates “simply because men would not work at the low rates paid women” was impermissible under the EPA. Federal courts interpreted the EPA somewhat broadly. However, the law’s watchdogs could only make employers correct their wage practices and pay for their past misdeeds.
Advocates discovered that while the EPA had potential, it was a tiny hammer applied to a giant nail. The Act only applied to workers in the same workplace, impotent to reshape entire economic sectors.
It also excluded the preexisting seniority systems that kept funneling men to the top. As the National Organization for Women pointed out in 1975, delivering equal pay for equal work would cost $35 billion annually, even when equal work was narrowly defined. “Who will pay for that?,” members asked. “Who is benefitting from our exploitation?”
Feminists had no easy answers for the first question, but the second one was simpler. When a series of early-1970s economic shocks halted decades of postwar expansion, corporate leaders embraced the new climate of austerity to squeeze their workers. Employers hid behind the shaky economy to evade equality mandates including the EPA. AT&T, the telephone monopoly that was the nation’s largest employer of women, reached a landmark $38 million settlement with federal agencies in 1973. The company paid the settlement, then overhauled its technology, reducing the ranks of operators and channeling women into blue-collar positions that were already planned for elimination. AT&T officials defended these changes as necessary for cutting costs even as the company was banking record profits. Businesses had wide latitude in this environment of national scarcity, and the gendered pay gap stayed largely stagnant.
As the pay gap languished, public sector workers in the late 1970s launched their most ambitious push for pay equity. In arguments that surpassed the “comparability” advocates in the EPA’s founding debates, they championed the theory of comparable worth.
Comparable worth requires employers to pay workers equally based on the value that their position brings to the employer. This theory attempts to correct the historic undervaluation of feminized labor.
Advocates pursued wage adjustments in courts, on picket lines, and at the bargaining table.
Comparable worth’s proponents sometimes won, but federal courts snuffed out the theory’s legal potential mid-decade. So did Republican President Ronald Reagan, who appointed conservatives including Clarence Thomas, who, as EEOC chairman, rejected comparable worth as a remedy for sex discrimination in 1985. The theory has since made modest progress in the public sector.
Unequal Pay Today
At the EPA’s sixty-year mark, it’s time to revisit the roots of unequal pay in America. The EPA has eroded the wage gap and won back pay for millions of women whose work could be defined as “substantially similar” to a male counterpart’s. But the Act only applies to workers in the same workplace. The EPA also leaves untouched the myriad forms of sex and race discrimination that keep women clustered in underpaid sectors.
The EPA’s narrow framing cannot measure the value workers create for employers or for our society. During the peak of the COVID-19 pandemic, for example, “essential” workers in feminized sectors such as food processing and healthcare risked their health for low wages.
Our current predicament—the veneer of equality draped over deep inequities—was not inevitable. Let us mark the EPA’s anniversary by demanding what has always been required to deliver on its promise: broader mandates for equality alongside a reckoning about labor’s value.
Katherine Turk is Associate Professor of History at the University of North Carolina-Chapel Hill.
Photo credit: American Association of University Women members with President John F. Kennedy as he signs the Equal Pay Act, Abbie Rowe, Public domain, via Wikimedia Commons