EVANSTON, Ill.-- The struggle over gender discrimination in the workplace suffered a series of defeats in courts during the 1970s and 1980s. Arguments for "equal pay for equal work" gave way to battles over "comparable worth," with plaintiffs insisting in their lawsuits, for example, that jobs typically held by females, such as secretarial positions, should be valued as much as jobs typically held by males, such as maintenance positions.
But the defendants kept insisting in court that they were merely following the market in their pay practices. Ultimately the courts agreed, proclaiming that Congress did not intend to override the free market.
But a new book by two sociologists, from Northwestern University and University of Illinois at Chicago, turns the "market" defense upside down, while pointing out the inherent flaws in fighting pay discrimination with a "comparable worth" remedy. The book concludes that more research needs to be conducted on how inequality is created inside organizations, rather than succumbing to the flawed logic that gender discrimination is largely a product of an uncontrollable force called the market.
"Major legal precedents have been built upon the notion that labor markets -- not employers -- are the source of inequality," said Robert L. Nelson, professor and chair of sociology at Northwestern University and senior research fellow of the American Bar Foundation. "But our research clearly shows that the 'old boys' network is alive and thriving in the workplace, and much gender inequality is the direct result of organizational decision-making."
"Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America" (Cambridge University Press, 1999) is co-authored by Northwestern's Nelson and William Bridges, professor and head of sociology at the University of Illinois at Chicago.
Today, with women still earning only 76 percent of what men make, the struggle for pay equity continues. Women's groups and organized labor have made pay equity legislation a top priority, and Congressional Democrats have introduced pay "fairness" legislation. Yet in the courts, the market view of "between-job" wage differences has discouraged plaintiffs from bringing broad-based challenges to employers' pay practices.
"The court cases typically relied on measures of external market wages that were very discretionary in how they treated different classes of workers," said Bridges. "Even though plaintiffs usually would also present other types of evidence and statistics pointing to blocked opportunities for women, the courts would tend to pigeon hole the cases as comparable worth lawsuits and dismiss them."
Through a careful, sophisticated examination of data on wage-setting practices from four landmark pay discrimination cases, Nelson and Bridges demonstrate that employing organizations tend to pay lower wages to workers in predominately female jobs because they have less power in organizational politics and because employment practices tend to reflect male cultural advantages.
The case studies involved the State of Washington, Sears Roebuck and Company, the University of Northern Iowa (UNI) and Coastal Bank (fictitious name for a big bank in a big city). The cases were litigated between 1977 and 1985, but the more general analysis of case law and gender inequality goes through 1997. The empirical record includes court documents, transcripts of interviews with participants, organizational documents, work force statistics and local labor market data.
The irony is that the courts legalized gender inequality by giving authoritative approval to the market justification for "between-job" earnings differences. "Despite compelling evidence to the contrary, the courts almost never found a set of facts in which they sided with the female plaintiffs to find discrimination in between-job pay," said Nelson. "With few exceptions, the courts' opinions in these cases offer sweeping pronouncements that market forces and efficiency considerations explain the wage differences at issue."
Wage inequality between men and women holding different jobs is going to continue unless courts and policymakers come up with a new understanding of its sources and a new set of laws and policies to address it, conclude Nelson and Bridges.
Market factors and efficiency principles should not be abandoned, they said. Rather, the authors advocate the development of a theoretical approach that attempts to explain the relative weight that market, efficiency and organizational inequality have in determining the wages of male and female workers. In Ontario, for example, a law has been passed which requires employers to conduct studies similar to those proposed. If employers implement reforms to correct pay disparities the studies uncover, they gain immunity from litigation.
Without changing the fundamental aspects of organizational politics -- the ways that male advantages are reproduced through the pay system -- the comparable worth remedy is bound to fail. "The comparable worth remedy misdiagnoses the causes of gender inequality and often falls prey to the same organizational process that initially generated the differential," said Nelson. "Besides, the comparable worth remedy appears politically unfeasible in Congress."
A sample of the book's findings follows:
- A small proportion of jobs were actually compared with the market, and appropriate market data for comparisons were chosen arbitrarily. At UNI and Coastal Bank, the "market rate" for a given job varied substantially depending on the segment of the market chosen, such as unionized workers versus others, or New York City banks versus banks in other cities, or large banks versus medium-size banks versus other large financial institutions.
- The primary method employed to measure the market was a salary survey, whose methods were often arbitrary. The surveys were done by another organization or by the companies' own personnel offices, with interested parties often influencing what jobs to survey, what data to reject as inaccurate and when additional data should be collected to correct or clarify earlier results.
- Several aspects of organizational pay practices directly contribute to gender inequality. The most active participants in debates about wage surveys and job evaluations are male -- workers, union representatives and managers. At UNI male administrators were fearful of the response of male physical plant workers to change the starting wages for positions but enjoyed paternalistic control over female clerical workers. At Sears the axiom "to get ahead you had to move" clearly put women at a disadvantage for promotions and relocation pay raises.
- Traditional wage differences among organizational positions were preserved. After formal revisions of a pay system, personnel officials often openly resisted changing the relative pay of positions. UNI refused to follow its own consultant's recommendation to put certain "male" and "female" jobs in the same job category. For the State of Washington wage survey results largely maintained historical pay patterns. And despite a wide ranging set of job evaluations, relatively few Coastal Bank jobs were affected by competing market wages.