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Comparable Worth
by Jo Freeman

Part I: Background

Published in In These Times, August 22 - September 4, 1984, p. 16.

The concept of equal pay for work of equal value, also known as comparable worth, pay equity, and sex based wage discrimination, has been called by friends and foes alike the women's rights issue of the eighties. However, even among proponents there is little consensus on what it is, what to call it and whether any legislative action should be taken to achieve it.
The issue came to national prominence last fall when U. S. District Judge Jack E. Tanner of Tacoma, Washington ruled that the State of Washington had discriminated against its employees in predominantly female job classifications by paying them significantly less than employees in predominantly male job classifications which required equivalent skill, responsibility, effort and working conditions. Washington State had conducted a study in 1974 which revealed a 20 percent disparity between the average wages of traditionally male and female job classifications. It was sued by its employees' union (AFSCME) when the state legislature acted slowly and inadequately to eliminate the difference.
Since Tanner's ruling several bills or resolutions have been introduced into Congress and hearings have been held by four different Congressional committees. However, his decision is being appealed and the Justice Department has said it might enter the case on the side of the State of Washington. Nonetheless, the House Committee on Government Operations recently recommended that the Equal Employment Opportunity Commission file on the side of the employees.
Although some have called comparable worth a radical proposal that would completely restructure the American economy, to those most intimately involved in the legal cases or in implementation it is neither new nor radical. Winn Newman, the attorney on the Washington State and other key cases says it is "really nothing more than plain old garden variety job rate inequity with which the labor movement has historically wrestled. Unions have regularly grieved and arbitrated the proper rate for the job -- and arbitrators have regularly been called upon to resolve disputes over these rates and to establish rates that employers must pay."
Nina Rothchild, Commissioner of Employee Relations of the State of Minnesota asserts that "the principles of pay equity are simple and clear. Sex-based wage discrimination is against the law. Pay equity is a method to uncover and eliminate sex-based wage discrimination."
Newman declines to use the terms "comparable worth" or "pay equity" on the grounds that they are popular terms, not legal ones, and that they obfuscate what is really at stake. He has spent over fifteen years litigating cases charging employers with "sex based wage discrimination" which is prohibited by Title VII. The initial cases were filed on behalf of the IUE (International Union of Electrical, Radio and Machine Workers) of which he was General Counsel. These cases sought to rectify long existing wage inequities that had been identified as early as World War II.
Under pressure from the War Labor Board to stabilize wages and avoid strikes, employers such as General Electric and Westinghouse hired consultants to evaluate jobs in their plants and assign them points based on the skill, effort, responsibility and working conditions involved. Relative wages were determined by each jobs relative point values, except that those jobs in which women predominated had their rates lowered by one-third so that the highest paid "women's jobs" paid less than the lowest paid "men's jobs."


The Equal Pay Act passed in 1963 had no effect on these wage rates because it only required equal pay when men and women were doing substantially the same work. As originally proposed in 1945 by Senators Claude Pepper (D. Fla.) and Wayne Morse (who as a member of the War Labor Board had seen many of these cases) it would have made paying women less than men for comparable work an unfair labor practice. The scope and enforcement provisions were narrowed in 1962 to make passage possible. The EPA had no effect on the common practice of channeling women and men into different jobs based on their sex. Although Title VII prohibits segregation of jobs by sex, employers did not change their practices after it was passed in 1964. Instead they changed the names of "female" and "male" blue collar jobs to "light" and "heavy".
Women have used court cases, grievances procedures, and complaints to the EEOC to attack this job segregation for twenty years, but change has been slow. According to sociologist Barbara Reskin of the University of Michigan, overall job segregation decreased by only ten percent between 1970 and 1980. However, even this improvement hides segregation within job categories. For example, the Bureau of Labor Statistics shows there has been a vast increase in women bus drivers. But virtually all have part-time jobs as school bus drivers. Few have gained the higher paying full time permanent jobs of metropolitan or interstate bus drivers.
Sex based wage discrimination cases would have no effect on the relative incomes of these different types of bus drivers because they largely have different employers. However, the Washington State case, and several less publicized ones which preceded it, has opened the legal door to challenging pay practices by a single employer when the jobs are quite different if it can be shown that the difference in pay results from a difference in the sex of the job holder where the employer knows that the jobs are equivalent in skill, effort, responsibility and working conditions.
Opponents do not view comparable worth as narrowly as proponents do nor do they use the term sex based wage discrimination. In hearings by Congressional Committees in the last few months and in recent hearings by the U. S. Commission on Civil Rights, opponents claimed that adoption of comparable worth policies will be the "entering wedge" to "social engineering" by a federal agency which will eventually determine everyone's wages and make U.S. industry uncompetitive with the rest of the world.
They claim that the only proper determinant of wages is the market, and that if women are working at jobs that pay poorly it is because they choose those jobs for benefits they provide other than wages. Several have testified at the hearings that if women want to be paid like a man, they should "get a man's job." Some have even advocated "affirmative action" (but not quotas) to achieve this end! Opponents also claim that it is impossible to evaluate jobs impartially because too many value judgements are involved, that different jobs have different worths to different employers and that individual skill and ability should be rewarded differently.
Proponents' views are no more uniform than opponents, but some generalizations can be made. They deny that the market works very well for most jobs and argue that women are discouraged from entering the better paying "male" jobs. They would agree with the latter claims, but the comparable worth policies most proponents have in mind would not require any new agency, the creation of an impartial job evaluation system or comparisons between employers or individuals.
Rather employers, particularly in the public sector, would be encouraged to do internal studies using job evaluation systems developed over 30 years, refined to account for sex bias. These systems all evaluate jobs, not the people doing them; thus do not effect rewards based on performance. In order to work they require that a consensus be achieved by representatives of different interests within a firm on the relevant job factors and the number of points to be given to each one.
Opponents argue that the cost of such studies would be prohibitive, and might only create more litigation on their validity. Proponents claim that full dress evaluations are not necessary; inquiries can be restricted to ascertaining the amount of sex-based wage discrimination, and that the informal job evaluation systems most employers already have would be sufficient in most cases. Since sex discrimination is illegal, a court might order a wage disparity analysis if employers failed to do them on their own, thus they would not necessarily avoid litigation by inaction.
The remedies most frequently mentioned by proponents of pay equity are legislation, litigation and collective bargaining. Most unions would prefer to achieve wage gains by collective bargaining, backed up by the threat of litigation. AFSCME only sued the State of Washington because state law prohibited public employees from bargaining over wages. Legislation by states to compel pay equity studies of their own employment practices is also encouraged. However, since the courts have said that Title VII encompasses sex based wage discrimination claims (and by inference race, religion and national origin as well), Joy Ann Grune, former director of the National Committee on Pay Equity feels that "substantive legislation is not necessary. What we need is enforcement of Title VII." The NCPE is an umbrella group of over 75 organizations, including a dozen trade unions.
Several members of Congress who support comparable worth and would like to attach their names to the cause have submitted bills or resolutions, as well as calling numerous hearings. Sen. Dan Evans (R. Wash. he ordered the original Washington State study while Governor but left office before it could be implemented) and Rep. Olympia Snowe (R. Maine) have called for pay equity studies of the legislative branch and implementation of their findings. Mary Rose Oakar's (D. Ohio) bill would order the Office of Personnel Management to do a similar study of the civil service. Alan Cranston (D. Calif.) and Pat Schroeder (D. Col.) are exhorting the EEOC and other relevant agencies to pursue sex based wage discrimination claims, a demand that would not have been necessary under previous administrations.
Schroeder had originally drafted bills to amend Title VII and the Equal Pay Act to incorporate sex based wage discrimination claims but was asked to drop them by pay equity advocates. Such bills would have implied that sex based wage discrimination was not already illegal, and that was not a good message to send the courts. If AFSCME v. Washington is overturned by a higher court, interest in such a bill may revive.


Comparable Worth II: Politicization

Published in In These Times, September 5-11, 1984, p. 16.

Comparable worth officially became a partisan issue last month when the Republican Party adopted a platform provision opposing it one month after the Democratic platform declared that party's support. To those who have followed the Reagan Administration's consistent attempts to undermine all pay equity efforts this is not surprising. This pattern of opposition by all federal agencies concerned with discrimination led Lane Kirkland, President of the AFL-CIO, to tell a Congressional Committee last April that "the message the Reagan Administration... is sending to the employers of America is that sex discrimination in wages and salaries is not really very important or very wrong."
Even before the final draft of the platform, written by White House staff, was made public, the Administration's attitude was apparent in hearings (called "consultations") on June 6-7 by the supposedly independent Civil Rights Commission. Although witness were invited to give academic papers, they were cross-examined by Commissioners acting as though they represented the prosecution or defense rather than the disinterested fact finding agency it is supposed to be. Leading the pay equity defense team (and joined solely by Blandina Ramirez) was Howard Law Professor Mary Berry. She was fired by President Reagan when he took office, but reappointed by House Speaker Tip O'Neill (D. Mass.) after Congress reconstituted the Commission under a different format.
Berry told this reporter that the Commission had actually come out against comparable worth several months ago and agreed to hold hearings only after she challenged their legal right to take a position without investigation. She has accused the Commission of "being a public relations arm of the White House."
The White House was in need of a public relations arm after a memo to Office of Personnel Management Director Donald Devine was leaked in May, resulting in hurriedly called hearings by Cong. Mary Rose Oakar (D. Ohio). Oakar has two pay equity bills before Congress, one of which would require that OPM do a study of pay practices in the civil service much like the one that eventually led to the Washington State suit. The memo to Devine said that if Congress does require a pay equity study, it could be used to "show a clear picture to the private sector about how ridiculous the concept of comparable worth is."
It went on to say that "the political possibilities of this situation should not be underestimated. By doing job evaluation across clerical and blue collar occupations, a comparable worth study would immediately divide the white collar and blue collar unions.... since [the latter] would be the inevitable losers in such a comparable worth adjustment process." The memo advocated using the Oakar bill to "further divide this constituency of the left... [and] create disorder within the Democratic House pitting union against union and both against radical feminist groups."
Devine followed up on this suggestion a few days later by inviting representatives of several unions representing government employees to a briefing in his office on May 22 where they were lectured on how blue collar pay scales would suffer if a pay equity bill was passed. At the May 30 hearings the union representatives all said that the purpose of the meeting was to mislead them into opposing Oakar's bill. They endorsed the goal of pay equity and denounced the clumsy political manipulation of the OPM. Saul Stein, Research and Education Director of the Metal Trades Department of the AFL-CIO, demanded that Devine and the deputy who wrote the memo resign on the grounds that it was "a clear violation of the Hatch Act" which prohibits political activity by federal employees.
After the hearings Oaker amended her bill to require that the study be done by an outside consultant "in cooperation with OPM and federal labor and women's organizations" so that "the final product will not be subject to manipulation or partisan politics." She also attached it to another bill on civil service pay which was supported by the Administration in order to prevent a veto. This bill was passed by the House 413 to 6 in late June.
According to Winn Newman, the attorney who has handled the leading pay equity cases for fifteen years, all the federal agencies obligated to enforce equal employment opportunity laws have been remiss since Reagan became President. In testimony before the House Committee on Government Operations last February he said the Equal Employment Opportunity Commission had interpreted Title VII broadly prior to 1981, but that "President Reagan"s appointees to EEOC lost no time in expressing their opposition to correcting sex-based wage discrimination." He said the EEOC has taken no action on over 250 charges currently filed with the agency alleging some form of wage discrimination and listed several potential cases the EEOC could have brought to court or referred to the Justice Department for action which the agency has ignored. EEOC Chair Clarence Thomas claimed that there are no sex based wage-discrimination complaints before the EEOC, only comparable worth cases, which "are not cognizable under Title VII." He told the Government Operations Committee that the EEOC considers sex based wage discrimination to be a "priority" issue, but has not been able to act on "comparable worth" cases because it does not yet have a policy on how to handle them. The Committee concluded that the "EEOC has placed itself in a "Catch-22" situation by refusing to act without a policy while at the same time refusing to squarely address the issue and adopt a policy." It found that "the Commission did not initiate any action until the Committee began its investigation" and that it "has failed in its responsibility as the lead Federal agency for enforcement of employment discrimination law."


The courts have not expressly permitted the bringing of "comparable worth" claims, but have said that sex based wage discrimination is a violation of Title VII. The EEOC's semantic distinction between a popular term and the legal one permitted it to claim that it was fulfilling its legal mandate without having to violate the then unstated policy of the Reagan administration to oppose pay equity efforts.
An earlier internal EEOC memo recommended dismissal of all comparable worth complaints, in part because most of them were against state or municipal governments. While the EEOC can investigate and attempt to conciliate complaints against governmental bodies, Title VII only permits the Justice Department at its discretion, not the EEOC, to sue them. It is the responsibility of the EEOC to decide which governmental cases to refer to the Justice Department for possible legal action. The EEOC memo said the Justice Department was "not likely to file suit." The Justice Department declined to testify before the Government Operations Committee on the grounds that it had "had no occasion" in the last three years to file a wage discrimination case. EEOC Chair Thomas had originally decided not to testify until threatened with a subpoena by the Committee.
The Labor Department has also declined to take action on comparable worth issues, and has tried to undo the achievements of the Carter administration. In 1978, when Ray Marshall was Secretary of Labor, suit was filed against the Kerr Glass Manufacturing Corporation charging that Kerr channeled its unskilled men and women into different but comparable entry level jobs whose evaluation was skewed to achieve sex discriminatory wage rates. Reagan's Department of Labor settled the case four years later by agreeing to drop wage discrimination and related back pay claims.
In 1979 the Labor Department's Office of Federal Contract Compliance Programs proposed revisions to its Sex Discrimination Guidelines that included a section on comparable worth. The new rules were frozen by Reagan shortly after he took office and when finally issued on August 26 (the anniversary of women's suffrage) the comparable worth language had been deleted.
Opposition to pay equity has been so consistent and appeared so early that it is unlikely to have been arrived at independently by each of the federal agencies involved. Comparable worth was not officially a partisan issue until the 1984 party platforms were adopted and prominent supporters and opponents are still to be found in both parties. However, the person who has been most influential in shaping the Reagan Administration's policies on women has been Phyllis Schlafly. Members of her Eagle Forum inundated the 1980 Reagan/Bush campaign with angry phone calls after it appointed many supporters of the ERA and pro-choice to a Women's Policy Advisory Board. This convinced Administration policy makers, particularly Ed Meese, that Schlafly, not feminist Republicans (most of whom had supported Ford or Bush), was the one to listen to on issues affecting women.
Schlafly and her Eagle Forum have consistently opposed comparable worth and have alarmed many conservative Republicans with their claims that it would lead to government wage controls. She has also opposed any studies being done by government agencies on wage based sex discrimination on the grounds that they are a preliminary step to expensive law suits. When Cong. Jack Kemp (R. NY), a 1988 Presidential aspirant, spoke at Jerry Falwell's Family Forum III on August 18 he was criticized from the audience by an Eagle Forum member for voting for the Oakar bill. She claimed comparable worth was "an attempt to bring in the ERA through the back door."

Comparable Worth III: State and local activities

Published in In These Times, September 12-18, 1984, p. 11.

While academics and politicians are arguing the merits of comparable worth in Washington, it is being legislated, litigated and bargained for in the states. The first law suit was filed by the International Union of Electrical, Radio and Machine Workers (IUE) in 1970. The first job evaluation study specifically designed to test for wage disparities between predominantly male and female jobs was conducted by the State of Washington in 1974. It became the model for numerous other studies by state and local governmental units at the urging of their employees' unions and women's organizations. It has not been the model for implementation.v The tipping point for activity on comparable worth was in 1981. Prior to that time there was some question as to whether sex-based wage discrimination claims under Title VII, which prohibits discrimination in employment on the basis of sex, race, religion and national origin, were limited by the requirement of the 1963 Equal Pay Act that the work be substantially equal. As originally proposed in 1945 the EPA required that work be comparable, but it was narrowed in 1962 to make passage possible. When sex was added to Title VII during floor debates in 1964 a special exemption permitted employers to differentiate wages by sex where authorized by the EPA.
Consequently most cases claiming that predominantly female jobs were paid less then predominantly male ones which were not substantially equal but were equivalent in skill, effort, responsibility and working conditions were dismissed by the courts unless women could show that the wage disparities were intentional. Title VII generally does not require that discriminatory intent be proved. Many of the sex-based wage discrimination cases filed prior to 1981 were settled out of court because there was a long history of intentional wage discrimination.
On June 8, 1981 the Supreme Court declared that Title VII was broader than the Equal Pay Act. However it made a point of stating it was only ruling on the question of scope and not "on the controversial concept of 'comparable worth'." Thus it is not surprising that the decision by a District Judge last fall that the State of Washington violated Title VII when it failed to remove wage disparities between predominantly female and male jobs uncovered by its own studies has been appealed.
1981 also saw the first strikes over comparable worth. In July of that year city employees in San Jose, California went on strike for nine days after a four year effort to obtain pay equity. A job evaluation study showed that the work force was heavily sex segregated and that there was an 18 percent difference in wages for equivalent jobs where 70 percent of the occupants were either men or women. The employees' union (AFSCME) was unable to reach a settlement with the city even though San Jose had woman mayor and a female majority on the city council. The strike ended when the city agreed to provide 1.5 million dollars for wage adjustments of 5 to 15 percent over a two-year period in addition to the 15 1/2 percent across the board pay raise.
Going on strike was not a viable option in the State of Washington, so the following year AFSCME filed suit. The 1974 study had been initiated by Governor Dan Evans at the request of the Washington Federation of State Employees. It was updated three times, with each investigation revealing still more sex segregation and wage discrimination. Evans last budget request before leaving office included seven million dollars to begin implementing the results of the studies, but it was deleted by his successor, Dixie Lee Ray, even though there was a budget surplus that year. The legislature took no further action until the AFSCME suit was filed, when it set up a ten year implementation plan. The judge found this to be too little, too late and not only ordered the state to implement pay equity immediately, but to pay the employees it had short-changed (10 percent of whom are men) several hundred million dollars in back pay.


The size of the award has frightened many state legislators. At an annual meeting of the National Conference of State Legislatures last December several participants said that their states would be reluctant to conduct studies out of fear that they would be obligated to immediately budget millions of dollars they might not have to remove any sex based wage disparities. AFSCME and other proponents counter that the size of the award was largely for back pay, not implementation per se. AFSCME contends that there would be no lawsuits, and hence no back pay awards, if states would act "reasonably and responsibly" to bring the wages of women's jobs in line with men's.
In contrast to the state of Washington, the state of Minnesota is held out as the right way to respond to pay equity demands. In 1981 the Minnesota Commission on the Economic Status of Women created a pay equity task force of legislators, labor, management and the general public which put out a report estimating the undervaluation of predominantly female jobs based upon a job evaluation previously done by an outside consultant. The following year the legislature appropriated 22 million dollars for initial pay equity adjustments. Over 8,000 employees received adjustments--some as high at $1,600-- in addition to the 8 1/2 percent general increase. The legislature also changed the state personnel law to make pay equity a primary policy and to compel local governments to implement it.
Since 1974 over a dozen states and dozens of local jurisdictions have mandated comparable worth studies and several have passed laws to add it to their equal pay acts or incorporate it into their public employee wage policies. Some of these studies, such as that in New York, are extremely elaborate. However, only Minnesota, Washington, New Mexico and Connecticut, and several cities, have actually allocated money to eliminate wage disparities. Washington did so under threat of a law suit and Connecticut has been sued by AFSCME because the amount it allocated was so inadequate.
In those jurisdictions which permit public employee unions to participate in wage setting, authorization of the studies and implementation of their findings is usually done through a combination of collective bargaining and legislation. In other jurisdictions, political pressure has been the key ingredient. This political pressure has largely been a consequence of the increasing numbers of women state legislators and the increasing sophistication of women's organizations, some of it gained through ERA struggles.
At the Forum for Women State Legislators in San Diego last December workshops on pay equity had twice the attendance of any other. Women legislators from ten states asked for model bills to take home with them. The women's network of the National Conference of State Legislatures engineered passage of a resolution supporting pay equity by the NCSL a couple years ago. There has been some sort of pay equity activity in at least 40 states and 52 municipalities. Nonetheless, one member of this network told a NCSL workshop last December that "this is only the beginning. Comparable worth is about to explode in the states."