Labor Discrimination - Equal Pay Thesis

Goodyear which effectively denied employees the right to sue for wage discrimination after the passing of 180 days that "Justice Ruth Bader Ginsberg was so incensed she read her scathing dissent aloud from the bench. She defended Lilly Ledbetter's right to sue her employer, Goodyear Tire & Rubber Co., Inc. For pay discrimination on the basis of sex, giving a not-so-gentle reminder of the realities of the American workplace." (Steiger, 2007) Specifically written by Justice Ginsburg is that as follows:

worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight." (Steiger, 2007)

Steiger reports that the EEOC has a backlog of cases and with the ruling in the Ledbetter case it was predicted that the backlog was likely to increase. Steiger states "The Ledbetter ruling places greater importance on the EEOC mediation, so an employee with a complaint must file with the EEOC within the given time period to give legitimacy to any lawsuit that may follow if the EEOC cannot resolve the compliant. The Ledbetter ruling has created a "protection plan for employers," Henderson said, because the burden of proof already lies with the employee filing the charge, and creating a limited time period gives employers an incentive to withhold the information until the filing period has expired." (2007)

II. SEX DISCRIMINATION ACT

The Sex Discrimination Act 1975 makes it illegal for an employer to discriminate against an individual in the workplace upon the basis of that individual's gender in regards to job selection, training, promotion, work practices, dismissal or any other effective disadvantage in the workplace such as sexual harassment. This Act additionally makes it illegal to discriminate against an individual upon the basis of their gender in the areas of education as well as the supply of goods and services.

This Act is applicable to men and women alike and also addresses discrimination upon the basis of marital status. There is no qualifying period of employment for the individual to be covered by law under this act and each employee is covered by this Act immediately upon being hired for a job. In fact this act covers the individual from the moment they are hired and throughout their employment and in some cases covers the references provided by a former employer following termination of employment and not only covers employees but workers, agency workers and in some instances covers those who are self-employed.

In the work entitled: "Incidence of Employment Discrimination: Is Perception Reality" the findings of a recent Gallup Poll are stated to include the findings as follows:

1) While the overall discrimination rate is 15%, it varies considerably by race and gender. Women are more than twice as likely to report that they have been discriminated against in the past year (22%) as are men (9%);

2) Asians and blacks are most likely to report experiences of discrimination (31% and 26%, respectively), while 18% of Hispanics and 12% of whites also report such incidents;

3) the difference in discrimination among men and women is primarily among whites, with only 3% of white men, compared with 22% of white women, reporting such experiences;

4) Black men and women report similar rates -- 26% and 27%, respectively. 20% of Hispanic men and 15% of Hispanic women report incidents of discrimination; and 5) the two types of discrimination most frequently cited are gender (26%) and race/ethnicity (23%). In addition, 17% mentioned age discrimination, 9% cited disability, 4% sexual orientation, and 4% religion. (Lenard, 2009)

III. GENDER EQUALITY and the ROLE of LAW

The work of Nakakubo (2003) entitled: "Gender Equality and the Role of Law" states that the "question of equality for men and women in the workplace is relatively new in the area of labor law. It was not until the 1970s that it became a topic of serious discussion. Even before World War II the International Labor Organization (ILO) Convention's consideration of women was mainly as a target of protective (rather than gender-based quality) measures such as maternity leave and prohibition of women's working in mines or at night." (2003)

Nakakubo states that following the war in 1951 that "Convention No. 100 concerning equal wages for men and women was adopted, but the ILO did not necessarily progress in its handling of the equality issue. On the contrary, apparently due to the ILO inclination toward the traditional labor law, pressure on the issue of equality came from other forums including Title VII of the Civil Rights Act of 1964 in the United States, the European Union 1976 Equal Treatment Directive, and the UN Convention on the Elimination of All Forms of Discrimination Against Women (1980)." (2003)

It is related by Nakakubo that the Labor Standards Law, as it relates to Japan, was effective in 1947, and Article 4 which prohibits wages discrimination based on gender however had little effect "partly because of difficulty in defining equal work." (Nakakubo, 2003) the regulations are stated to have not been extended to labor conditions other than those of wagers and the 'various forms of discrimination against women workers continued." (Nakakubo, 2003) However, in the 1960s, "court judges began invoking the principle of gender equality in Article 14 of the Constitution in handling cases of discrimination against women such as compulsory retirement upon marriage and retirement age set earlier for women than men, thereby forming a legal principle by which to nullify such practices on the ground that they are a violation of what Article 90 of the Civil Code calls 'public order and morals.' (Nakakubo, 2003)

In 2005, it was reported in the work entitled: "Equal Pay for Women Still a Long Way From Reality" that the widening pay gap "between men and women underscores the pressing need to enact two bills introduced in the U.S. Congress" specifically "Equal Pay Day." (Schmelzer and Robinson, 2005) Senator Hillary Rodham Clinton along with House of Representatives Rosa DeLauro introduced the Paycheck Fairness Act which focused on elimination of the disparities through placing enforcement power into the Equal Pay Act of 1963 which "bars wage discrimination on the basis of sex." (2005)

The work of Elaine Hobbs Fry and Allayne Barrileaux Pizzolatto (2001) entitled: "Managing Pay Equity in the Small Business" states that current trends "suggest that interest in the pay equity issue will not diminish in the 21st Century. If anything, as more women and minorities enter and gain experience in the workforce, the interest in pay equity will increase." This work relates that the small business owner must necessarily "recognize the significance of pay equity issues from a legal and competitive advantage perspective. Small business owners can elect to be proactive and guide their company to pay parity or wait, react, and suffer the consequences. This paper discusses the history and current trends of pay equity and offers proactive management measures to the small business owner." (Fry and Pizzolatto, 2001)

Fry and Pizzolatto state that since the Equal Pay Act (EPA) became law many years have passed. This law makes it a requirement that companies "pay covered employees of both sexes the same wages for substantially equal work in jobs that are performed under similar working conditions, and that demand equal skill, effort and responsibility." (Fry and Pizzolatto, 2001) According to this report the Equal Employment Opportunity Commission (EEOC) "...reported that women filed 3800 wage-related charges with them in 1999, and since 1992, the commissions' total recovery in wage bias cases has reached nearly 100 million." (Fry and Pizzolatto, 2001)

The report of Fry and Pizzolatto (2001) relates that the Bureau of Labor Statistics (BLS) states that the "...gap between men and women's pay still exists. In fact, the BLS reports that in nine instances since passage of the act, the pay gap actually widened from one year to the next." (Fry and Pizzolatto, 2001) Fry and Pizzolatto state that many and various reasons have been "offered for this gap" and that "one prevailing explanation is 'discrimination against women's occupations.' The American Prospect reports that as the percentage of women in an occupation rises, wages tend to fall." (Fry and Pizzolatto, 2001) Fry and Pizzolatto state that while the "...final jury is still out as to why this inequity exists, the fact remains that today women earn approximately 75% of men's median income. Hence, the issue continues to draw much attention in the political and work arena." (Fry and Pizzolatto, 2001)

Laws in regards to worker pay "date back to 1938 with the passage of the Fair Labor Standards Act. This act sets standards for minimum wage, hours of work, and determining the exempt or nonexempt status…