The Pay Gap, The Glass Ceiling, And Pay Bias: Moving Forward 50 Years After The Equal Pay Act

by Orrick, Herrington & Sutcliffe LLP
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I. Introduction -

When the Equal Pay Act (“EPA”) became law in 1963, women earned approximately 59 cents for every dollar a man earned. Women today are earning roughly 80 cents on the dollar. While the past 50 years have seen extraordinary progress for women, the persistence of a 20 percent gender pay gap, coupled with the rapidly growing population of women in the workforce, has caused the government to reinvigorate its efforts to enforce and strengthen pay discrimination laws. While eliminating pay bias is important, focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.

Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. The pay gap says nothing about gender disparities within specific professions or positions. It fails to account for differences in chosen profession, education, work patterns, and work experience, among other factors. pay gap is also driven in large part by the glass ceiling—the barrier keeping qualified women from rising to the upper rungs of the professional ladder. Women remain significantly underrepresented among the top ranks of business, finance, academia, and government.6 Studies consistently show that the concentration of women in low-paying jobs, and occupational selections—the actual position a woman selects within an industry—are two key drivers of the pay gap. Studies also demonstrate that while women make less money than men, they also work fewer hours each year, have more work interruptions, and spend more time doing unpaid work than their male counterparts. These work patterns, which contribute to lower wages for women, also inhibit women’s rise to highest levels of their professions particularly given the increasing proportion of high-earning individuals who work 50 hours per week or more. Tackling the pay gap means understanding the glass ceiling as well.

This article was originally prepared for the ABA Section of Labor and Employment Law Annual Labor and Employment Law Conference 2013*.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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