Comparable worth: An economic and ethical analysis

Journal of Business Ethics

Volumn 17, Issue 5, 1998, Pages 455-470

  Pincus, Laura ^a   Shaw, Bill ^a  

^a DEPAUL UNIVERSITY   (United States)

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EID: 0032325714     PISSN: 01674544     EISSN: None     Source Type: Journal    
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References (123)

1. 1 "Pay equity" and "comparable worth" are used interchangeably in Canada. Canada also uses the term "employment equity" to refer to affirmative action legislation.
2. 2 George Rutherglen, The Theory of Comparable Worth as a Remedy for Discrimination 82 Geo L. J. 135, 142-146 (1993).
3. 3 29 U.S.C. sec. 206 (d)(1)(1988).
4. 4 Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. The extent of the disparity remains a controversy. While some researchers contend that the difference in wages between men and women is as much as thirty cents per dollar, Francine Blau & Andrea Beller, Trends in Earnings Differences by Gender 41 Indus. & Lab. L. Rev. 513, 514 (1988), other data evidences a much smaller gap. B. Orris, Comparable Worth, Disparate Impact and The Market Rate Salary Problem: A Legal Analysis and Statistical Application 71 Cal. L. Rev. 730 (1983). Elaine Sorensen, using 1991 Population Survey Data, finds an inverse relationship between the hourly earnings of women in an occupation and the proportion of workers in the occupation that are women. Specifically, women who work in a female-dominated job earn $3.88 per hour less than women, with the same amount of education, who work in a male-dominated job. Elaine Sorenson, Comparable Worth: Is It a Worthy Policy? 9 (1994). When single women without children are compared to their male counterparts, the difference becomes as small as seven cents per dollar. U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 174, 112-18 (1992); Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993).
5. 4 Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. The extent of the disparity remains a controversy. While some researchers contend that the difference in wages between men and women is as much as thirty cents per dollar, Francine Blau & Andrea Beller, Trends in Earnings Differences by Gender 41 Indus. & Lab. L. Rev. 513, 514 (1988), other data evidences a much smaller gap. B. Orris, Comparable Worth, Disparate Impact and The Market Rate Salary Problem: A Legal Analysis and Statistical Application 71 Cal. L. Rev. 730 (1983). Elaine Sorensen, using 1991 Population Survey Data, finds an inverse relationship between the hourly earnings of women in an occupation and the proportion of workers in the occupation that are women. Specifically, women who work in a female-dominated job earn $3.88 per hour less than women, with the same amount of education, who work in a male-dominated job. Elaine Sorenson, Comparable Worth: Is It a Worthy Policy? 9 (1994). When single women without children are compared to their male counterparts, the difference becomes as small as seven cents per dollar. U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 174, 112-18 (1992); Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993).
6. 4 Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. The extent of the disparity remains a controversy. While some researchers contend that the difference in wages between men and women is as much as thirty cents per dollar, Francine Blau & Andrea Beller, Trends in Earnings Differences by Gender 41 Indus. & Lab. L. Rev. 513, 514 (1988), other data evidences a much smaller gap. B. Orris, Comparable Worth, Disparate Impact and The Market Rate Salary Problem: A Legal Analysis and Statistical Application 71 Cal. L. Rev. 730 (1983). Elaine Sorensen, using 1991 Population Survey Data, finds an inverse relationship between the hourly earnings of women in an occupation and the proportion of workers in the occupation that are women. Specifically, women who work in a female-dominated job earn $3.88 per hour less than women, with the same amount of education, who work in a male-dominated job. Elaine Sorenson, Comparable Worth: Is It a Worthy Policy? 9 (1994). When single women without children are compared to their male counterparts, the difference becomes as small as seven cents per dollar. U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 174, 112-18 (1992); Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993).
7. 4 Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. The extent of the disparity remains a controversy. While some researchers contend that the difference in wages between men and women is as much as thirty cents per dollar, Francine Blau & Andrea Beller, Trends in Earnings Differences by Gender 41 Indus. & Lab. L. Rev. 513, 514 (1988), other data evidences a much smaller gap. B. Orris, Comparable Worth, Disparate Impact and The Market Rate Salary Problem: A Legal Analysis and Statistical Application 71 Cal. L. Rev. 730 (1983). Elaine Sorensen, using 1991 Population Survey Data, finds an inverse relationship between the hourly earnings of women in an occupation and the proportion of workers in the occupation that are women. Specifically, women who work in a female-dominated job earn $3.88 per hour less than women, with the same amount of education, who work in a male-dominated job. Elaine Sorenson, Comparable Worth: Is It a Worthy Policy? 9 (1994). When single women without children are compared to their male counterparts, the difference becomes as small as seven cents per dollar. U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 174, 112-18 (1992); Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993).
8. 4 Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. The extent of the disparity remains a controversy. While some researchers contend that the difference in wages between men and women is as much as thirty cents per dollar, Francine Blau & Andrea Beller, Trends in Earnings Differences by Gender 41 Indus. & Lab. L. Rev. 513, 514 (1988), other data evidences a much smaller gap. B. Orris, Comparable Worth, Disparate Impact and The Market Rate Salary Problem: A Legal Analysis and Statistical Application 71 Cal. L. Rev. 730 (1983). Elaine Sorensen, using 1991 Population Survey Data, finds an inverse relationship between the hourly earnings of women in an occupation and the proportion of workers in the occupation that are women. Specifically, women who work in a female-dominated job earn $3.88 per hour less than women, with the same amount of education, who work in a male-dominated job. Elaine Sorenson, Comparable Worth: Is It a Worthy Policy? 9 (1994). When single women without children are compared to their male counterparts, the difference becomes as small as seven cents per dollar. U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 174, 112-18 (1992); Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993).
9. 4 Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. The extent of the disparity remains a controversy. While some researchers contend that the difference in wages between men and women is as much as thirty cents per dollar, Francine Blau & Andrea Beller, Trends in Earnings Differences by Gender 41 Indus. & Lab. L. Rev. 513, 514 (1988), other data evidences a much smaller gap. B. Orris, Comparable Worth, Disparate Impact and The Market Rate Salary Problem: A Legal Analysis and Statistical Application 71 Cal. L. Rev. 730 (1983). Elaine Sorensen, using 1991 Population Survey Data, finds an inverse relationship between the hourly earnings of women in an occupation and the proportion of workers in the occupation that are women. Specifically, women who work in a female-dominated job earn $3.88 per hour less than women, with the same amount of education, who work in a male-dominated job. Elaine Sorenson, Comparable Worth: Is It a Worthy Policy? 9 (1994). When single women without children are compared to their male counterparts, the difference becomes as small as seven cents per dollar. U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 174, 112-18 (1992); Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993).
10. 5 Judge Richard A. Posner explains comparable worth as follows: "Comparable worth is not a legal concept but a shorthand expression for the movement to raise the ration of wages in traditionally women's jobs to wages in traditionally men's jobs." American Nurses Assn. v. State of Illinois, 783 F.2d 716, 719 (7th Cir. 1986).
11. 6 Sorenson, supra note 4, at 10-13.
12. 7 It is not a matter of controversy that the conditions of an efficiently operating free market are as follows: (1) buyers and sellers can freely enter and leave the market and are so numerous that no individual or firm can impact the price or quantity of goods sold, (2) that all parties to economic transactions have full and free information, (3) that all costs (including social costs) are paid by producers, and (4) the government does not control or regulate prices. Relevant to this inquiry is the common understanding that markets fail when, over time, business does not cover all of its costs (e.g., product safety cost, environmental pollution cost, non-relevant job discrimination costs). Government interventions that compel business to absorb these costs (e.g., product safety standards, the Clean Air Act, Title VII) are efforts to correct market failures and restore, or establish, free and efficient markets. The object of these interventions is to prevent business firms from imposing these costs, in the form of negative externalities, on the general public.
13. 8 Karen J. Maschke, Litigation, Courts, and Women Workers (1989).
14. 9 Id., citing General Order No. 16, as amended, reprinted in Wartime Wage Control Dispute Settlement 135 (1945).
15. 10 29 U.S.C. 206(d) (1988).
16. 11 Id. The four defenses are pay differentials due to (1) a seniority system, (2) a merit system, (3) a system measured by a quality or quantity of production, and (4) a system based on any factor other than sex.
17. 12 Schultz v. Wheaton Glass Company, 421 F.2d 259, 265 (3rd Cir. 1970).
18. 13 42 U.S.C. 2000e-s(h)(1988).
19. 14 602 F.2d 882 (9th Cir. 1979). See also, IUE v. Westinghouse, 631 F.2d 1094, 1105 (3rd Cir. 1980) (in accord); but see, Lemons v. City and County of Denver, 620 F.2d 228, 229 (10th Cir. 1980).
20. 15 Id.
21. 16 County of Washington v. Gunther 451 U.S. 161, 166 (1981).
22. 17 Id.
23. 18 770 F.2d 1401 (9th Cir. 1985).
24. 19 Id., at 1405-1406.
25. 20 Id.
26. 21 Rosemary Hunter, A Feminist Response to the Gender Gap in Compensation Symposium 82 Geo L. J. 147 (1993).
27. 22 Id., at 150-151.
28. 23 Jennifer Roback, The Gender Gap in Compensation: Beyond Equality 82 Geo. L. J. 121, 123-124 (1993) (arguing that the documented wage gap is not a real cause for concern because money income is a poor indicator of utility or happiness and that we can infer next to nothing by comparing the income of one person with another).
29. 24 For example, in Litigation, Courts and Women Workers, supra note 8, Karen J. Maschke observes that male secretaries and clerks were paid more than women who entered the jobs after they had been held by men.
30. 25 Gary S. Becker, The Economics of Discrimination 8
31. 26 Jane Friesen, The Gender Gap in Compensation: Alternative Economic Perspectives on the Use of Labor Market Policies to Redress the Gender Gap in Compensation 82 Geo. L. J. 31 (1993).
32. 27 Id., at 34, citing George A. Akerlof, Discriminatory, Status-based Wages Among Tradition-oriented, Stochastically Trading Coconut Producers 93 J. Pol. Econ. 265 (1985).
33. 28 Friesen, supra note 26 at 34.
34. 29 Becker, supra note 25 (defining a "taste for discrimination" as the willingness "to forfeit income in order to avoid certain transactions"). Kenneth J. Arrow argues that, in a constant or decreasing cost industry, a nondiscriminatory employer could produce at lower costs than a discriminating employer by employing more members of the disadvantaged class. See generally, Kenneth J. Arrow, The Theory of Discrimination, in Discrimination in Labor Markets 3 (Orley Ashenfelter & Albert Rees, eds., 1973). This argument depends, however, on the plausibility of certain assumptions - constant costs, long-run elasticity of supply factors, and the number of nondiscriminating firms in the industry. See Glen G. Cain, The Economic Analysis of Labor Market Discrimination: A Survey, in 1 Handbook of Labor Economics 693 (Orley Ashenfelter & Richard Layard, eds., 1986).
35. 29 Becker, supra note 25 (defining a "taste for discrimination" as the willingness "to forfeit income in order to avoid certain transactions"). Kenneth J. Arrow argues that, in a constant or decreasing cost industry, a nondiscriminatory employer could produce at lower costs than a discriminating employer by employing more members of the disadvantaged class. See generally, Kenneth J. Arrow, The Theory of Discrimination, in Discrimination in Labor Markets 3 (Orley Ashenfelter & Albert Rees, eds., 1973). This argument depends, however, on the plausibility of certain assumptions - constant costs, long-run elasticity of supply factors, and the number of nondiscriminating firms in the industry. See Glen G. Cain, The Economic Analysis of Labor Market Discrimination: A Survey, in 1 Handbook of Labor Economics 693 (Orley Ashenfelter & Richard Layard, eds., 1986).
36. 29 Becker, supra note 25 (defining a "taste for discrimination" as the willingness "to forfeit income in order to avoid certain transactions"). Kenneth J. Arrow argues that, in a constant or decreasing cost industry, a nondiscriminatory employer could produce at lower costs than a discriminating employer by employing more members of the disadvantaged class. See generally, Kenneth J. Arrow, The Theory of Discrimination, in Discrimination in Labor Markets 3 (Orley Ashenfelter & Albert Rees, eds., 1973). This argument depends, however, on the plausibility of certain assumptions - constant costs, long-run elasticity of supply factors, and the number of nondiscriminating firms in the industry. See Glen G. Cain, The Economic Analysis of Labor Market Discrimination: A Survey, in 1 Handbook of Labor Economics 693 (Orley Ashenfelter & Richard Layard, eds., 1986).
37. 30 Cain, supra note 29, at 719. Friesen, supra note 26, at 32.
38. 31 Friesen, supra note 26, at 36.
39. 32 Charles Brown, Equalizing Differences in the Labor Market 64 Q. J. Econ. 113 (1980); Robert S. Smith, Compensating Differentials and Public Policy: A Review 32 Indus. & Lab. Rel. Rev. 339 (1979); Randall K. Filler, Male-Female Wage Differentials: The Importance of Compensating Differentials 38 Indus. & Lab. Rel. Rev. 426 (1985).
40. 32 Charles Brown, Equalizing Differences in the Labor Market 64 Q. J. Econ. 113 (1980); Robert S. Smith, Compensating Differentials and Public Policy: A Review 32 Indus. & Lab. Rel. Rev. 339 (1979); Randall K. Filler, Male-Female Wage Differentials: The Importance of Compensating Differentials 38 Indus. & Lab. Rel. Rev. 426 (1985).
41. 32 Charles Brown, Equalizing Differences in the Labor Market 64 Q. J. Econ. 113 (1980); Robert S. Smith, Compensating Differentials and Public Policy: A Review 32 Indus. & Lab. Rel. Rev. 339 (1979); Randall K. Filler, Male-Female Wage Differentials: The Importance of Compensating Differentials 38 Indus. & Lab. Rel. Rev. 426 (1985).
42. 33 Elinor Lenz & Barbara Myerhoff, The Feminization of America, 75-95 (1985) (description of the home as the feminine domain and workplace as the domain of the husband); The Worth of Women's Work, sec. II (Anne Statham et al. eds., 1988); Marilyn Waring, Counting for Nothing (1988); Nancy S. Barrett, Women in the Job Market: Occupations, Earnings, and Career Opportunities, in The Subtle Revolution: Women at Work, 46-54 (Ralph E. Smith ed., 1979) (economic harm to women caused by job segregation which permits employers to circumvent equal pay principles).
43. 33 Elinor Lenz & Barbara Myerhoff, The Feminization of America, 75-95 (1985) (description of the home as the feminine domain and workplace as the domain of the husband); The Worth of Women's Work, sec. II (Anne Statham et al. eds., 1988); Marilyn Waring, Counting for Nothing (1988); Nancy S. Barrett, Women in the Job Market: Occupations, Earnings, and Career Opportunities, in The Subtle Revolution: Women at Work, 46-54 (Ralph E. Smith ed., 1979) (economic harm to women caused by job segregation which permits employers to circumvent equal pay principles).
44. 33 Elinor Lenz & Barbara Myerhoff, The Feminization of America, 75-95 (1985) (description of the home as the feminine domain and workplace as the domain of the husband); The Worth of Women's Work, sec. II (Anne Statham et al. eds., 1988); Marilyn Waring, Counting for Nothing (1988); Nancy S. Barrett, Women in the Job Market: Occupations, Earnings, and Career Opportunities, in The Subtle Revolution: Women at Work, 46-54 (Ralph E. Smith ed., 1979) (economic harm to women caused by job segregation which permits employers to circumvent equal pay principles).
45. 33 Elinor Lenz & Barbara Myerhoff, The Feminization of America, 75-95 (1985) (description of the home as the feminine domain and workplace as the domain of the husband); The Worth of Women's Work, sec. II (Anne Statham et al. eds., 1988); Marilyn Waring, Counting for Nothing (1988); Nancy S. Barrett, Women in the Job Market: Occupations, Earnings, and Career Opportunities, in The Subtle Revolution: Women at Work, 46-54 (Ralph E. Smith ed., 1979) (economic harm to women caused by job segregation which permits employers to circumvent equal pay principles).
46. 34 Friesen, supra note, at 38. See generally, David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No 4019, 1992).
47. 34 Friesen, supra note, at 38. See generally, David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No 4019, 1992).
48. 35 See generally, Gary S. Becker, Human Capital, Effort, and Division of Labor 3 J. Lab. Econ. 533 (1985) (hypothesizing that women's greater responsibility for child care and housework will lead to less commitment to business careers, less energy for demanding managerial positions, but that marriage provides men with the opportunity to specialize, which leads to greater productivity and higher earnings).
49. 36 Martha Hill, The Wage Effects of Marital Status and Chiledren 14 J. Hum. Resources 579 (1979).
50. 37 Robert Nakosteen & Michael Zimmer, Marital Status and Earnings of Young Men 14 J. Hum. Resources 223 (1987).
51. 38 Cf., Rosemary Hunter, The Gender Gap in Compensatioin: Afterword - A Feminist Response to the Gender Gap in Compensation Symposium 82 Geo. L. J. 147 (1993). Lest one view with dismay what may seem to be a deconstructionist tactic (a tactic sometimes attributed to Jacques Derrida and to Stanley Fish) to undermine one account with another which is no more, or less, credible than that which it is intended to rebut, see Martha Nussbaum, Skepticism About Practical Reason, in Literature and the Law 107 Harv. L. Rev. 714-43 (1994), this section is stocked with good reasons supporting the why, the how, and the impact of government intervention.
52. 38 Cf., Rosemary Hunter, The Gender Gap in Compensatioin: Afterword - A Feminist Response to the Gender Gap in Compensation Symposium 82 Geo. L. J. 147 (1993). Lest one view with dismay what may seem to be a deconstructionist tactic (a tactic sometimes attributed to Jacques Derrida and to Stanley Fish) to undermine one account with another which is no more, or less, credible than that which it is intended to rebut, see Martha Nussbaum, Skepticism About Practical Reason, in Literature and the Law 107 Harv. L. Rev. 714-43 (1994), this section is stocked with good reasons supporting the why, the how, and the impact of government intervention.
53. 39 Rhode, supra note 4, at 1209.
54. 40 Edward McCaffrey, Slouching Toward Equity 103 Yale L. J. 595 (1993).
55. 41 These costs include the difficulty (time, effort, expense) of measuring a worker's MP at any one time.
56. 42 Id., at 610.
57. 43 Id., at 674.
58. 44 Id., at 656.
59. 45 By 1989, 20 states had provided comparable worth adjustments to at least some state employees.
60. 46 Elaine Sorensen, Comparable WorthL: Is it a Worthy Policy? 191 (1994).
61. 47 Id.
62. 48 Id., at 107.
63. 49 Id., at 112. Comparable worth slowed the growth rate from 20% to 17.2% and 3.9% to 2.9% for female and male employment respectively.
64. 50 Sorensen, supra note 46, at 113. Sorensen acknowledged this limitation at the end of her analysis.
65. 51 Shulamit Kahn, Economic Implications of Public-sector Comparable Worth: The Case of San Jose, California 31 Ind. Rel. 2 (70).
66. 52 Id., at 275-277, 286.
67. 53 Id., at 278.
68. 54 Id., at 284.
69. 55 Ronald Ehrenberg, Econometrics Analysis of the Empirical Consequences of Comparable Worth: What Have We Learned? (National Bureau of Economic Research 1988). Specifically, Ehrenberg synthesizes Kahn and Killingsworth's studies of San Jose, Orazem & Matilla's study of Iowa, and Killingsworth study of Minnesota. One should note as well the evidence of Australia's adoption of comparable worth. The Australian system was phased in between 1969 and 1975. Women's wages compared to men's increased from 65% to 86%. Employment for women continued to rise, but at a rate 1/3 less than was expected (unemployment among women was up by 0.5%). Robert G. Gregory & Robert C. Duncan, Segmented Labor Market Theories and the Australian Experience of Equal Pay for Women, Journal of Post Keynesian Economics, 403-428 (1981).
70. 55 Ronald Ehrenberg, Econometrics Analysis of the Empirical Consequences of Comparable Worth: What Have We Learned? (National Bureau of Economic Research 1988). Specifically, Ehrenberg synthesizes Kahn and Killingsworth's studies of San Jose, Orazem & Matilla's study of Iowa, and Killingsworth study of Minnesota. One should note as well the evidence of Australia's adoption of comparable worth. The Australian system was phased in between 1969 and 1975. Women's wages compared to men's increased from 65% to 86%. Employment for women continued to rise, but at a rate 1/3 less than was expected (unemployment among women was up by 0.5%). Robert G. Gregory & Robert C. Duncan, Segmented Labor Market Theories and the Australian Experience of Equal Pay for Women, Journal of Post Keynesian Economics, 403-428 (1981).
71. 56 Id., at 24.
72. 57 See infra notes 58-61, and accompanying text. See also Spaulding v. University of Washington, 740 F.2d 686, 706-707; American Federation of State, County and Municipal Employees (AFSCME) v. Washington 770 F.2d 1401 (9th Cir. 1985); American Nurses Assn. v. State of Illinois, 783 F.2d 716, 719 (7th Cir. 1986).
73. 58 Ellen Paul, Equity and Gender, 47 (1989).
74. 59 Gary S. Becker, The Economics of Discrimination, 159 (1957).
75. 60 Helen Remick and Ronnie Steinberg, Comparable Worth, in Gertrude Ezorsky (ed.), Moral Rights in the Workplace, 249 (1987). It is interesting to note that, in fact, Nancy Perlman of the National Committee on Pay Equity did try to compare apples and oranges during Congressional hearing in 1983, or at least contended that it was relevant that oranges were better. She attempted to equate comparable worth and the nutritional evaluation of fruit. For instance, if an orange were nutritionally better for a person, it would warrant a higher price. U.S. Congress, House of Representatives, Pay Equity: Equal Pay for Work of Comparable Value, Parts I & II, Serial No. 97-53, Committee on Post Office and Civil Service, Subcommittees on Human Resources, Civil Service, Compensation and Employee Benefits, 69 (1983).
76. 60 Helen Remick and Ronnie Steinberg, Comparable Worth, in Gertrude Ezorsky (ed.), Moral Rights in the Workplace, 249 (1987). It is interesting to note that, in fact, Nancy Perlman of the National Committee on Pay Equity did try to compare apples and oranges during Congressional hearing in 1983, or at least contended that it was relevant that oranges were better. She attempted to equate comparable worth and the nutritional evaluation of fruit. For instance, if an orange were nutritionally better for a person, it would warrant a higher price. U.S. Congress, House of Representatives, Pay Equity: Equal Pay for Work of Comparable Value, Parts I & II, Serial No. 97-53, Committee on Post Office and Civil Service, Subcommittees on Human Resources, Civil Service, Compensation and Employee Benefits, 69 (1983).
77. 61 Michael Gold, A Dialogue on Comparable Worth 43-44 (1983).
78. 62 Judge Richard Posner explains that "unless employers forbid women to compete for the higher paying, traditionally men's jobs - which would violate federal law - women will switch into those jobs until the only difference in wages between the traditionally women's jobs and traditionally men's jobs will be that necessary to equate the supply of workers in each type of job to the demand." American Nurses Assn. v. State of Illinois, 783 F.2d 716, 719 (7th Cir. 1986).
79. 63 Nicholas Mathys & Laura Pincus, supra note 4 (discussing gender differences in connection with intrinsic rewards sought in the work place); Mark Killingsworth, The Economics of Comparable Worth, 45 (1990).
80. 63 Nicholas Mathys & Laura Pincus, supra note 4 (discussing gender differences in connection with intrinsic rewards sought in the work place); Mark Killingsworth, The Economics of Comparable Worth, 45 (1990).
81. 64 Contardo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 753 F. Supp. 406, 410-412 (D.Ma. 1990).
82. 65 42 U.S.C. 2000e-s(h) (1988). For a general discussion of the capability of the law to redress wage-based discrimination, see, e.g., Isabelle Pinzler & Deborah Ellis, Wage Discrimination and Comparable Worth: A Legal Perspective 45 J. Soc. Iss. 51 (1989). On the other hand, courts have systematically rejected application of comparable worth in the courtroom. See, e.g., Spaulding v. University of Washington, 740 F.2d 686, 706-707 (9th Cir. 1984); Lemons v. City and County of Denver, 620 F.2d 228 (10th Cir. 1980); Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977); American Federation of State, County and Municipal Employees (AFSCME) v. Washington, 770 F.2d 1401 (9th Cir. 1985).
83. 65 42 U.S.C. 2000e-s(h) (1988). For a general discussion of the capability of the law to redress wage-based discrimination, see, e.g., Isabelle Pinzler & Deborah Ellis, Wage Discrimination and Comparable Worth: A Legal Perspective 45 J. Soc. Iss. 51 (1989). On the other hand, courts have systematically rejected application of comparable worth in the courtroom. See, e.g., Spaulding v. University of Washington, 740 F.2d 686, 706-707 (9th Cir. 1984); Lemons v. City and County of Denver, 620 F.2d 228 (10th Cir. 1980); Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977); American Federation of State, County and Municipal Employees (AFSCME) v. Washington, 770 F.2d 1401 (9th Cir. 1985).
84. 65 42 U.S.C. 2000e-s(h) (1988). For a general discussion of the capability of the law to redress wage-based discrimination, see, e.g., Isabelle Pinzler & Deborah Ellis, Wage Discrimination and Comparable Worth: A Legal Perspective 45 J. Soc. Iss. 51 (1989). On the other hand, courts have systematically rejected application of comparable worth in the courtroom. See, e.g., Spaulding v. University of Washington, 740 F.2d 686, 706-707 (9th Cir. 1984); Lemons v. City and County of Denver, 620 F.2d 228 (10th Cir. 1980); Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977); American Federation of State, County and Municipal Employees (AFSCME) v. Washington, 770 F.2d 1401 (9th Cir. 1985).
85. 66 Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993). See also June O'Neill, The Shrinking Pay Gap, Wall St. J., October 7, 1994, at A10.
86. 66 Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Looks Beyond Pay 44 Lab. L. J. 351, 354 (1993). See also June O'Neill, The Shrinking Pay Gap, Wall St. J., October 7, 1994, at A10.
87. 67 See e.g., Joni Hersch, Male-Female Differences in Hourly Wages: The Role of Human Capital, Working Conditions and Housework 44 Indus. & Lab. Rel. Rev. 746 (1991); Gary Becker, Human Capital, Effort and The Sexual Division of Labor 3 J. Lab. Econ 533 (1985); American Nurses Assn. v. State of Illinois, 783 F.2d at 719 ("Economists have conducted studies which show that virtually the entire difference in the average hourly wage of men and women, including that due to the fact that men and women tend to be concentrated in different types of jobs, can be explained by the fact that most women take considerable time out of the labor force in order to care for their children. As a result, they tend to invest less in their 'human capital' (earning capacity); and since part of any wage is a return on human capital, they tend therefore to be found in jobs that pay less"). See also Brigitte Berger, Comparable Worth at Odds with American Realities, in Comparable Worth: Issue for the 80s, A Consultation of the U.S. Commission on Civil Rights, V. 1, at 69 (1984),
88. cited in Ellen Paul, Equity and Gender: The Comparable Worth Debate, 49 (1989).
89. 68 E. Erlich, The Mommy Track, 3096 Business Week, 123 Mar. 20, 1989 at 126 (discussing a growing trend at firms to offer paid extended leave, flexible scheduling, flextime, job sharing and telecommuting).
90. 69 Catherine Ross, John Mirowsky and Karen Goldsteen, The Impact of The Family on Health, in Alan Bloom, ed., Contemporary Families, Looking Forward, Looking Back (1991).
91. 70 Donna Berardo, et al., A Residue of Tradition: Job, Careers and Spouses' Time in Housework 49 Marriage & Fam. 381 (1987). See also, Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. For a general discussion of gender role socialization, see, e.g., Paula England & George Farkas, Households, Employment and Gender: A Social, Economic and Demographic View, 153-154 (1986).
92. 70 Donna Berardo, et al., A Residue of Tradition: Job, Careers and Spouses' Time in Housework 49 Marriage & Fam. 381 (1987). See also, Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. For a general discussion of gender role socialization, see, e.g., Paula England & George Farkas, Households, Employment and Gender: A Social, Economic and Demographic View, 153-154 (1986).
93. 70 Donna Berardo, et al., A Residue of Tradition: Job, Careers and Spouses' Time in Housework 49 Marriage & Fam. 381 (1987). See also, Deborah Rhode, Occupational Inequality, 1988 Duke L. J. 1207. For a general discussion of gender role socialization, see, e.g., Paula England & George Farkas, Households, Employment and Gender: A Social, Economic and Demographic View, 153-154 (1986).
94. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
95. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
96. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
97. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
98. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
99. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
100. 71 Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985); Joseph Pleck, Working Wives, Working Husbands (1985). In addition, researcher June O'Neill finds support for the contention that men and women approach work differently. Her research shows that, while men work continuously throughout their lives, women work only during 60% of their lives. June O'Neill. The Trend in the Male-Female Wage Gap in the United States 3 J. Lab. Econ. S91, S113-115 (1985) and An Argument Against Comparable Worth, Comparable Worth: Issue for Thye 80's, A Consultation of The U.S. Commission on Civil Rights, V. 1 at 179 (1984), cited in Ellen Paul, supra note 67, at 47. O'Neill also cites research which shows that only 77% of women between the ages of 35 and 29 expect to work at all. June O'Neill, Role Differentiation and the Gender Gap in Wages Rates, in L. Larwood, Women and Work, 64-66 (1985). See also Michele Wittig & Rosemary Lowe, Comparable Worth Theory and Policy 45 J. Soc. Iss. 1, 4 (1989).
101. 72 W. Bowen & T. Finegan, The Economics of Labor Force Participation, 40-41, 197-199 (1969); David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No. 4019) (1992) cited in Jane Friesen, Alternative Perspectives on The Use of Labor Market Policies to Redress the Gender Gap in Compensation 82 Geo. L. J. 31, 39 (1993) (finding a positive effect of marriage on men's wages and an insignificant effect of marriage on women's wages). The socialization of these disparate gender roles may begin when the individual is as young as two years old. H. B. Lewis, Psychic War on Men and Women (1976). A separate study reports that 54% of girls in 2nd, 4th, and 6th grades planned to be nurses, teachers, housekeepers, secretaries or waitresses, while only 1% of the boys shared the same aspirations. Fifty-seven percent of the boys planned to be fire fighters, police officers, car mechanics, construction workers, or involved in a sports-related position. Gloria Nemerowicz, Children's Perceptions of Gender and Work Roles (1979).
102. 72 W. Bowen & T. Finegan, The Economics of Labor Force Participation, 40-41, 197-199 (1969); David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No. 4019) (1992) cited in Jane Friesen, Alternative Perspectives on The Use of Labor Market Policies to Redress the Gender Gap in Compensation 82 Geo. L. J. 31, 39 (1993) (finding a positive effect of marriage on men's wages and an insignificant effect of marriage on women's wages). The socialization of these disparate gender roles may begin when the individual is as young as two years old. H. B. Lewis, Psychic War on Men and Women (1976). A separate study reports that 54% of girls in 2nd, 4th, and 6th grades planned to be nurses, teachers, housekeepers, secretaries or waitresses, while only 1% of the boys shared the same aspirations. Fifty-seven percent of the boys planned to be fire fighters, police officers, car mechanics, construction workers, or involved in a sports-related position. Gloria Nemerowicz, Children's Perceptions of Gender and Work Roles (1979).
103. 72 W. Bowen & T. Finegan, The Economics of Labor Force Participation, 40-41, 197-199 (1969); David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No. 4019) (1992) cited in Jane Friesen, Alternative Perspectives on The Use of Labor Market Policies to Redress the Gender Gap in Compensation 82 Geo. L. J. 31, 39 (1993) (finding a positive effect of marriage on men's wages and an insignificant effect of marriage on women's wages). The socialization of these disparate gender roles may begin when the individual is as young as two years old. H. B. Lewis, Psychic War on Men and Women (1976). A separate study reports that 54% of girls in 2nd, 4th, and 6th grades planned to be nurses, teachers, housekeepers, secretaries or waitresses, while only 1% of the boys shared the same aspirations. Fifty-seven percent of the boys planned to be fire fighters, police officers, car mechanics, construction workers, or involved in a sports-related position. Gloria Nemerowicz, Children's Perceptions of Gender and Work Roles (1979).
104. 72 W. Bowen & T. Finegan, The Economics of Labor Force Participation, 40-41, 197-199 (1969); David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No. 4019) (1992) cited in Jane Friesen, Alternative Perspectives on The Use of Labor Market Policies to Redress the Gender Gap in Compensation 82 Geo. L. J. 31, 39 (1993) (finding a positive effect of marriage on men's wages and an insignificant effect of marriage on women's wages). The socialization of these disparate gender roles may begin when the individual is as young as two years old. H. B. Lewis, Psychic War on Men and Women (1976). A separate study reports that 54% of girls in 2nd, 4th, and 6th grades planned to be nurses, teachers, housekeepers, secretaries or waitresses, while only 1% of the boys shared the same aspirations. Fifty-seven percent of the boys planned to be fire fighters, police officers, car mechanics, construction workers, or involved in a sports-related position. Gloria Nemerowicz, Children's Perceptions of Gender and Work Roles (1979).
105. 72 W. Bowen & T. Finegan, The Economics of Labor Force Participation, 40-41, 197-199 (1969); David Neumark & Sanders Korenman, Sources of Bias in Women's Wage Equations, 24-26 (National Bureau of Economic Research Working Paper No. 4019) (1992) cited in Jane Friesen, Alternative Perspectives on The Use of Labor Market Policies to Redress the Gender Gap in Compensation 82 Geo. L. J. 31, 39 (1993) (finding a positive effect of marriage on men's wages and an insignificant effect of marriage on women's wages). The socialization of these disparate gender roles may begin when the individual is as young as two years old. H. B. Lewis, Psychic War on Men and Women (1976). A separate study reports that 54% of girls in 2nd, 4th, and 6th grades planned to be nurses, teachers, housekeepers, secretaries or waitresses, while only 1% of the boys shared the same aspirations. Fifty-seven percent of the boys planned to be fire fighters, police officers, car mechanics, construction workers, or involved in a sports-related position. Gloria Nemerowicz, Children's Perceptions of Gender and Work Roles (1979).
106. 73 Linda Jackson argues that the pressures may not be based entirely on external stimulation. Her research demonstrates that many women are equally satisfied with less pay than men and do not perceive a discrepancy between the pay the want and the pay they receive. Linda Jackson, Relative Deprivation and the Gender Wage Cap 45 J. Soc. Iss. 117, 120-121 (1989). One may argue, however, that this distinction, itself, is societally-encouraged.
107. 74 Richard A. Posner, The Economics of Justice, 352 (1983). For a general economic analysis of discrimination, see, e.g., Gary Becker, The Economics of Discrimination, 159 (1957); Richard A. Posner, The Efficiency and The Efficacy of Title BII 136 U. Pa. L. Rev. 513 (1987); Richard A. Posner, Economic Analysis of Law, §27.1 (1986).
108. 74 Richard A. Posner, The Economics of Justice, 352 (1983). For a general economic analysis of discrimination, see, e.g., Gary Becker, The Economics of Discrimination, 159 (1957); Richard A. Posner, The Efficiency and The Efficacy of Title BII 136 U. Pa. L. Rev. 513 (1987); Richard A. Posner, Economic Analysis of Law, §27.1 (1986).
109. 74 Richard A. Posner, The Economics of Justice, 352 (1983). For a general economic analysis of discrimination, see, e.g., Gary Becker, The Economics of Discrimination, 159 (1957); Richard A. Posner, The Efficiency and The Efficacy of Title BII 136 U. Pa. L. Rev. 513 (1987); Richard A. Posner, Economic Analysis of Law, §27.1 (1986).
110. 74 Richard A. Posner, The Economics of Justice, 352 (1983). For a general economic analysis of discrimination, see, e.g., Gary Becker, The Economics of Discrimination, 159 (1957); Richard A. Posner, The Efficiency and The Efficacy of Title BII 136 U. Pa. L. Rev. 513 (1987); Richard A. Posner, Economic Analysis of Law, §27.1 (1986).
111. 75 Becker, supra note 74, at 19, 21.
112. 76 "Discrimination and the Marketplace: An Interview with Robert Higgs," in Comparable Worth: Will It Close the Pay Gap? 4 Manhattan Rep. 9 (1984), cited in Ellen Paul, Equity and Gender: The Comparable Worth Debath, 44 (1989).
113. 76 "Discrimination and the Marketplace: An Interview with Robert Higgs," in Comparable Worth: Will It Close the Pay Gap? 4 Manhattan Rep. 9 (1984), cited in Ellen Paul, Equity and Gender: The Comparable Worth Debath, 44 (1989).
114. 77 See supra notes 63, 64, and accompanying text.
115. 78 Ellen Paul, supra note 76, at 51-52.
116. 79 Id.
117. 80 Daniel Fischel & Edward Lazear, Comparable Worth: A Rejoinder 53 U. Chi. L. Rev. 950, 950 (1986).
118. 81 Research has shown through analogies to the effects of Title VII that imposition of comparable worth wage increases will result in employment losses for men. Andrea Beller, The Economics of Enforcement of Antidiscrimination Law: Title VII of the Civil Rights Act of 1964 21 J. L. & Econ. 359 (1978).
119. 82 Epidemiological studies in Minnesota, San Jose and Australia evidence a direct correlation between comparable worth wage increases and a decrease in the employment rate in traditionally female-dominated positions. Mark Killingsworth, The Economics of Comparable Worth, 280-281 (1990).
120. 83 Hartmann instead contends that "once unequal pay [for jobs of comparable worth] is understood as sex-based wage discrimination, even arguments that redress would be costly or might lead to some unemployment won't hold up against the basic issue of fairness and the importance of removing discrimination." Heidi Hartmann, Pay Equity for Women: Wage Discrimination and The Comparable Worth Controversy, in Robert Fullinwider & Claudia Mills (eds.), The Moral Foundations of Civil Rights, 175 (1986). However, Hartmann does not consider the possibility that the wage differential is not due to discrimination. Accordingly, the ends may not justify the means.
121. 84 Coppage v. Kansas, 236 U.S. 14, 17 (1914).
122. 85 Nicholas Mathys & Laura Pincus, Is Pay Equity Equitable? A Perspective That Goes Beyond Pay 44 Lab. L. J. 351, 360 (1993).
123. 86 Ellen Paul, supra note 76, at 115. Paul suggests that it would be an unpleasant world if people did, in fact, agree about objective valuation. For example, she offers, if Michael Jackson earned a million dollars for a performance and an emergency room nurse earned twenty dollars for her work over the same two hours, a world of objective valuation would consider that he was actually worth 50,000 times as much as the nurse. One would know her or his intrinsic value simply by looking to her or his salary. Instead, in a free market, moral worth and value are different than price and salary. Id., at 115-116.