PAY INEQUITY

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I’m just not one to quit. . . . I want justice for every woman past and present that has been discriminated against . . . I brought this case because I believe that there was a pattern of discrimination at Walmart, not just in my store, but I believe it is across the country.¹

—Betty Dukes

Betty Dukes, lead plaintiff in a class action lawsuit against Walmart for sex discrimination in salaries and promotions. (Farmani Gallery)

Betty Dukes was the lead plaintiff in a class action against Walmart that was dismissed by the Supreme Court. Title VII of the Civil Rights Act prohibits sex discrimination in employment, but not the kind of sex discrimination that results from gender stereotyping and a corporate culture that systematically disadvantages women. The court held that even if statistics established a pattern of lower pay and slower promotion in every one of Walmart’s 3,400 stores, it would not be enough for Betty and her co-workers to bring their claim.

Title VII, which covers employees in the private sector, is beyond the scope of the Fourteenth Amendment. Under the Equal Protection Clause of the Fourteenth Amendment, it is even more difficult to seek justice for sex discrimination against public employees. The Supreme Court has said that to be held responsible, the employer must have intended to discriminate against the women employed. Sex discrimination in the workplace can have a real and very harmful effect without necessarily being intentional. Many corporate cultures discriminate against women, and whether or not it’s a matter of official policy, the result for women is the same: less pay and a lower level on the corporate ladder.

The courts have also upheld the constitutionality of paying a woman less than her male colleagues, even though they are doing the exact same work, because the woman’s salary in a prior job was less than the man’s. Women can expect to earn much less than men over the course of their careers—anywhere from $700,000 to $2 million less.2

Many women have gone to court seeking relief from the sex discrimination they face in the terms of their employment. They have been denied justice as a result of limitations in the law and the way in which it has been interpreted. This helps explain why women still earn only 77 cents on average for every dollar men earn. An ERA could ensure that women have an effective legal remedy for systematic pay inequity.

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If you are a young woman who has graduated from high school, you can expect to earn a total of $700,000 less over the course of your career than the young men with whom you graduated. If you are a woman graduating from college, you can expect to earn $1.2 million less than your male classmates. And if you are a young woman with an advanced degree such as law or medicine, you can expect to earn $2 million less in your lifetime than your male colleagues.3 This is unequal, and it makes a real difference in the financial security and independence of women.

The Fourteenth Amendment has been interpreted by the Supreme Court to cover only state action, and therefore any protection it offers women from employment discrimination is limited to public employees. Since federal legislation to prohibit discrimination by private employers is beyond the scope of the Fourteenth Amendment, Congress has relied on the power it has to regulate interstate commerce under the Commerce Clause to serve as a constitutional foundation for this legislation. The Equal Pay Act was passed in 1963 to prohibit employers from paying employees differently on the basis of their sex. The law mandates equal pay for equal work “on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” In 1964, Title VII of the Civil Rights Act was passed, which prohibits employment discrimination on the basis of sex as well as race, color, religion, or national origin. While the Equal Pay Act governs only compensation, Title VII prohibits discrimination with respect to “terms, conditions, or privileges of employment” as well as compensation.⁴

These laws sound good. But if more than fifty years later, women are still making only 77 cents for every dollar made by men, clearly they have not been effective in equalizing pay between women and men. Over the past decades, many employees have gone to court seeking redress for discrimination in pay on the basis of sex, only to find their claims dismissed and the law working against them rather than for them. There are a number of reasons for this failure—a combination of loopholes in and interpretations of the law that have been played out in cases and upheld by the courts as constitutional. The Equal Pay Act, for example, includes a number of defenses that employers can use to justify differences in compensation. In addition to merit, seniority, and productivity, there is a defense that allows employers to claim that “any factor other than sex” is the reason for payment of different wages for equal work. This defense is also incorporated in Title VII.

Here is how this defense stopped Lola Kouba in her effort to remedy pay inequity: In 1974, Lola went to work for Allstate Insurance Company in California, where she and other new employees received a guaranteed minimum salary, calculated on the basis of ability, education, experience, and prior salary. Because women on average make less than men, their prior salary—and accordingly the minimum salary of new agents at Allstate—was on average less for women than it was for men. Lola was paid $825 per month while her male colleagues were paid at least $1,000 per month.5 On behalf of all female agents, Lola brought a class action against Allstate, arguing that reliance on their prior salary resulted in unequal pay and constituted unlawful discrimination on the basis of sex. Allstate argued that its reliance on the prior salaries of its employees was a “factor other than sex” and therefore a legitimate reason under the law to pay women differently than men.

The district court rejected Allstate’s argument, holding that an employer could not pay men and women doing exactly the same job differently based on their immediate past salaries unless the difference resulted from a “factor other than sex.” The Allstate agents were all doing the same job, and the court saw no reason other than sex for the differential in their salaries.⁶ But its decision was reversed in 1982 by the Ninth Circuit Court of Appeals, which said the district court had “misconstrued” the exception in the law. While acknowledging the fear that “an employer might manipulate its use of prior salary to underpay female employees,” the Ninth Circuit court concluded that the Equal Pay Act does not prohibit reliance on prior salary as a “factor other than sex.” The court accepted Allstate’s explanation that it was using the prior salary as part of a sales-incentive program to motivate its employees to exceed the monthly minimum through sales commissions. If the monthly minimum was much greater than an employee’s prior salary, the employee might be content with the minimum and would not work as hard for the extra commissions. This could be a “legitimate business reason” for the difference in salary, the Ninth Circuit court held, and therefore it was not a prohibited form of sex discrimination.7

In the course of further legal proceedings the case was settled, and in 1984 Allstate announced that, in its new marketing program, “all sales agent trainees and agents within the same market area will receive the same guarantee at the start of their careers.” Allstate agreed to pay $5 million to more than three thousand women who had been employed as sales agents or trainees, but the company insisted that it had not discriminated in the past by using prior salary as one of the factors in determining the guaranteed starting salary of its employees.⁸ This statement was consistent with the decision of the Ninth Circuit court, which set a precedent that has been relied on to deny women legal recourse for lower starting salaries.

What the Kouba decision means is that a woman who was paid less than a man in her last job can, for that reason, be given a lower salary than a man in her new job even though they are doing exactly the same work. Employers can continue paying women less than men because other employers have paid women less than men, without violating the Equal Pay Act or Title VII of the Civil Rights Act. By allowing payment of a differential salary based on “any factor other than sex,” the law enabled Allstate to pay women less than men for the same work, disregarding—and in fact institutionalizing—past sex discrimination resulting in present wage differences based on sex. In other words, if you are getting paid less than a man for doing the same work, the fact that you have always been getting paid less than a man for doing the same work will bar you from recourse under the law for this pay disparity. It is easy to see how this kind of logic could lead to the statistics cited earlier, leaving women up to $2 million behind their male colleagues.

In 1971, the Supreme Court recognized that seemingly neutral requirements could constitute “artificial, arbitrary, and unnecessary barriers to employment . . . [that] operate invidiously to discriminate on the basis of racial or other impermissible classification.”9 In Griggs v. Duke Power Co., a case challenging racial discrimination, the company had had an explicitly discriminatory policy restricting black workers to one department, which had the lowest paying positions. After passage of the Civil Rights Act, the company had removed this racist restriction but added several job requirements that led to a lower selection rate of black employees. The Supreme Court found that these requirements were unrelated to job performance and not a matter of business necessity, and as such were prohibited by Title VII.¹⁰ In passing Title VII, said the court, Congress intended to address all unnecessary employment practices that led to disparity on the basis of race, sex, and other protected classifications. Unless there was a legitimate reason for any job requirement that resulted in this outcome, the requirement was seen as problematic and a violation of Title VII, regardless of the underlying intent.

However, in 1976, the Supreme Court chose not to apply the same logic to the Equal Protection Clause of the Fourteenth Amendment, making it much more difficult for victims of discrimination by government employers to prove their cases in court under the Constitution. In Washington v. Davis, also a racial discrimination case, the Supreme Court held that seemingly neutral policies leading to disparate impact were not unconstitutional solely because they had this disparate impact. Establishment of intent to discriminate was required to constitute a violation of equal protection of the laws under the Constitution.¹¹ Writing for the majority, Justice Byron White distinguished the Title VII legislation, which applies to private employers, from the Equal Protection Clause standard for government employers. He said, “We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.”¹²

In effect, through its holding in Washington, the Supreme Court created a higher standard for constitutional claims, making it more difficult to prove discrimination as a violation of the Constitution than as a violation of Title VII. The upshot is that the government holds itself less accountable for disparate impact than it holds private employers. Washington v. Davis made a distinction between constitutional claims and Title VII claims, even though the employment discrimination issues are the same for the people who are discriminated against. In Washington, the Supreme Court could have simply applied its interpretation of Title VII to the claims brought under the Fourteenth Amendment. Instead it articulated a new, higher standard, requiring the establishment of an intent to discriminate for these claims against government employers.

Title VII, as interpreted by the Supreme Court in Griggs, envisioned disparate impact as a pattern evidencing discrimination to be remedied, barring a job-related explanation for the pattern relating to “business necessity.” As the jurisprudence evolved, however, it became more and more difficult for plaintiffs to prove their cases in court. In 1989, the Supreme Court adjudicated a Title VII case from Alaska in which unskilled workers in a salmon cannery were predominantly nonwhite Filipinos and Alaskan natives while skilled workers in the “non-cannery jobs” were mostly white. Additionally, housing and dining facilities at the cannery were segregated. The plaintiffs charged their employers with using employment practices that led to the racial disparities in the workforce, such as failure to advertise openings and nepotism in hiring. In this case, Ward’s Cove Packing v. Antonio, the Supreme Court significantly narrowed the Title VII decision it had made in Griggs. The court ruled that statistical disparity alone was not enough to make a case of discrimination without identifying specific employment practices causing the disparity, although it recognized that this might be considered “unduly burdensome” on plaintiffs.13 The court also altered the burden of proof on the issue of whether such disparate racial patterns were justified by “business necessity.” The court held that in their defense, employers had only to assert such a business necessity, not to prove it.

Writing for the dissent in Ward’s Cove, a 5–4 decision, Justice John Paul Stevens called the decision “most disturbing” and recalled that the issue is “whether an employment practice has a significant adverse effect on an identifiable class of workers—regardless of the cause or motive for the practice.”¹⁴ Justice Stevens cited the specific employment practices at issue, such as nepotism in hiring, as “obvious barriers to employment opportunities for nonwhites” and characterized the segregation of housing and dining and the stratification of jobs along racial lines as bearing “an unsettling resemblance to aspects of a plantation economy.”15

Following the Ward’s Cove case, in 1991, Congress amended Title VII “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” The law provided explicitly that an employee could prove a case of sex discrimination by showing that an employment practice resulted in a disparate impact on the basis of sex, when the employer failed to show that the practice “is required by business necessity.”¹⁶ This amendment effectively reinstated the law as it had been interpreted in the Griggs decision. Despite this clarification of “disparate impact” by Congress, however, the Supreme Court has continued to make it very difficult for employees to make claims of sex discrimination under Title VII, as evidenced by the Walmart case, in which the court narrowly interpreted the nature of discriminatory employment practices for which an employer could be held accountable.

In 1994, Betty Dukes went to work for Walmart in California as a cashier making $5 per hour. Walmart is the largest private employer in the United States, and Betty wanted to climb the corporate ladder. She made it to the level of customer service manager after three years, but advancing became more and more difficult. In 2001, Betty and five other women sued Walmart in a class action lawsuit on behalf of 1.5 million women who were working or had worked in a Walmart store since 1998. The women charged Walmart with violating Title VII by paying its male employees more than its female employees for the same work and by promoting men faster and further than women.

The case went all the way to the Supreme Court, but the issue was not whether Walmart paid men more than women, or promoted men faster than women. The issue was whether Betty Dukes could bring a lawsuit under Title VII on behalf of all the women who worked in a Walmart store. To sustain a class action lawsuit, those in the class who wish to bring a collective lawsuit must raise questions of law or fact that are common to the class. In 2004, the district court ruled that the group of women who had worked in Walmart could be certified as a class for the purpose of a class action lawsuit.17 Walmart appealed, and in 2010, the Ninth Circuit Court of Appeals affirmed the district court’s decision.¹⁸ Walmart appealed again to the highest court, and, in 2011—after ten years of litigation—the Supreme Court ruled that Betty Dukes and other women who worked at Walmart could not bring an action as a collective group against the company to address the disparate impact of its salary and promotion practices on women.¹⁹ Even if their allegations were all taken to be true, the court held, they still would not have established a common claim of sex discrimination because there was no single identified practice directed by the company that produced the disparate employment outcome for women. Consequently, the case never went to trial.²⁰

Although Walmart raised Betty’s pay to $15.23 an hour once the lawsuit and related media attention started to grow, Betty—an ordained Baptist minister—told a journalist, “I’m just not one to quit . . . I want justice for every woman past and present that has been discriminated against.”²¹ In another interview, Betty explained, “I brought this case because I believe that there was a pattern of discrimination at Walmart, not just in my store, but I believe it is across the country.” In the same interview, Walmart manager Stephanie Odle, another of the original plaintiffs in the class action lawsuit, was asked about what is called at the top corporate level of Walmart “the Walmart way”—a culture that allows discrimination against women to flourish, according to one of the expert witnesses in the case. Stephanie, who over the course of eight years worked in nine Walmart stores in three different states, confirmed that “the Walmart way” favors men over women. She recalled a conversation with one store’s district manager in which she inadvertently found out that one of her male colleagues was making $10,000 more a year than she was. The district manager explained to her, “He has a wife and kids to support.” In another conversation with a general manager, she asked for a raise on behalf of two women working for her who she felt were extremely underpaid; the general manager replied, “Oh, those girls make enough money. They don’t need another raise.”²²

Walmart did not have an express policy of discrimination. The claim made by the women employees was that local supervisors and store managers were given discretion to make salary and promotion decisions, and these decisions were being made in a manner that discriminated against women, in accordance with the corporate culture of Walmart. The Walmart women claimed that “the Walmart way” allowed gender-biased stereotypes to affect the decisions made over salary and promotion and that Walmart did nothing to control the local discretion that produced these results. Clearly the corporate culture had a disparate impact. The women presented statistical evidence about disparity between male and female employees in pay and promotion by the company, anecdotal reports of discrimination from more than one hundred female employees, and expert testimony from a sociologist who analyzed the culture and corporate practices of Walmart.

According to Justice Antonin Scalia, who wrote the Walmart decision for the Supreme Court, this evidence was “worlds away” from the proof required to establish that Walmart “operated under a general policy of discrimination.”23 He noted that even if the statistical evidence established a pattern of lower pay and slower promotion for women in all of Walmart’s 3,400 stores, that would not be enough to certify the class to enable women in Walmart to move forward together with a common claim of sex discrimination in a class action. He suggested they had nothing in common except being women and working for Walmart. In fact, these were the common elements that led to pay inequity, and four of the Supreme Court Justices dissented from the court’s judgment, including the three women justices on the court. In the dissent, Justice Ginsburg supported the conclusions of the lower courts that in this case there were questions of law or fact common to the class, as required for its certification. She identified the common question as “whether Wal-Mart’s pay and promotion policies gave rise to unlawful discrimination,” and commented:

The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases, of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.24

Sex discrimination in the workplace can have a real and very harmful effect without necessarily being intentional. Subconsciously, employers may, and often do, act in a way that perpetuates the second-class status of women as a group, leading to less favorable terms and conditions of work, including salary and promotion. Often women’s work is not valued. Anytime there is a pattern of lower pay and slower promotion for women, there is no question that women will be disadvantaged by that pattern. The law, as interpreted by the Supreme Court, has denied women an effective legal remedy for this disadvantage by making it “unduly burdensome” for plaintiffs such as Betty Dukes and all the women with whom she brought legal action against Walmart. If in every Walmart store women are paid and promoted less, and if the Supreme Court accepts that this might be the case yet still finds that nothing can be done about it as a whole, then it is easy to imagine that women in Walmart stores will continue to be paid and promoted less. Many corporate cultures discriminate against women, and whether or not it’s a matter of official policy, the result for women is the same: less pay and a lower level on the corporate ladder.

Even successful lawsuits under current legislation, as narrowly interpreted by the courts, have not readily secured justice for women challenging pay inequity. While Betty Dukes was working at Walmart, Lilly Ledbetter was working at Goodyear Tire and Rubber Company in Alabama. When Lilly started working for Goodyear in 1979, she received the same wages as male employees, but by the time of her retirement almost twenty years later, she was earning significantly less than her male co-workers. In November 1998, after her retirement, Lilly sued Goodyear for wage discrimination under Title VII and the Equal Pay Act. At trial, the jury found that Lilly Ledbetter had been evaluated unfairly because of her sex and for that reason had been paid significantly less than her male co-workers. She was awarded back pay and damages. Goodyear appealed, arguing that the 180-day statute of limitations barred most of her claims.

The Eleventh Circuit Court of Appeals agreed with Goodyear and reversed the district court’s judgment, ruling that Lilly Ledbetter could claim for damages based only on paychecks received no more than 180 days before she commenced legal action.25 In 2007, the Supreme Court upheld the Eleventh Circuit court’s decision, citing a prior case in which Justice Stevens had held that a discriminatory act falling outside the statute of limitations was “merely an unfortunate event in history which has no present legal consequences.”²⁶ Lilly had worked for almost twenty years at Goodyear, but under the court’s decision, she could be compensated at most for only the last six months of her employment. After the decision was rendered, the Lilly Ledbetter Fair Pay Act was introduced in Congress. This bill was brought in response to the case, to revise the law to ensure that prior acts of pay discrimination outside of the 180-day statute of limitations could be incorporated into claims if the discrimination was continuing. The law passed in January 2009, providing that the statute of limitations for these claims resets with each paycheck resulting from discriminatory action. Court-awarded compensation and punitive damages are still subject to a cap, however, under Title VII.

These cases have addressed, or more often failed to address, pay inequity between men and women doing the same job in the same workplace. Women as a class also face discrimination in the economy as a whole. For example, more than 75 percent of all truck drivers in 2009 were men, while more than 75 percent of all nursing aides were women. And while the average weekly earnings of truck drivers was $685 in 2009, the average weekly earnings of nursing aides was $438.²⁷ Driving a truck is not the same job as being a nursing aide. However, in terms of the job characteristics enumerated in the Equal Pay Act—skill, effort, and responsibility—comparisons can be made. The fact that those—mostly women—who are paid to take care of children earn less than janitors and those who are paid to park cars²⁸ is clearly not an indicator of the skill, effort, and responsibility required to care for children. It is evidence of sex discrimination against jobs regarded as “women’s work.”

While the Equal Pay Act is limited to jobs within the same workplace, Title VII does not have this limitation in its language. In 1981, four female prison guards sued the County of Washington in Oregon under Title VII for paying them less than male prison guards. Although the male guards worked in a different prison, where they were each responsible for more prisoners, the Supreme Court recognized that the protections under Title VII of the Civil Rights Act were broader than those of the Equal Pay Act, which only addressed compensation for “equal work.” The issue in this case, County of Washington v. Gunther, was not that the men got paid more for equal work but that, unlike their female counterparts, they got paid 100 percent of the evaluated worth of their jobs, as determined by an evaluation commissioned by the county. The same evaluation determined that the female guards should be paid 95 percent as much as the male guards, but instead of 95 percent, the county decided to pay female guards only 70 percent as much as the male guards.29

The Supreme Court clarified in this case that claims of wage discrimination brought under Title VII were not limited to equal pay for the exact same work, as they are under the Equal Pay Act. The discrimination recognized by the court was the disproportionate reduction in pay for the value of the work done by female guards, as compared with the full pay to male guards for the value of the work they did. The County of Washington’s intent to discriminate was clear from the decision to pay female guards less than the amount recommended while paying male guards the full amount recommended. In light of this decision, it seemed possible that Title VII, unlike the Equal Pay Act, could be an avenue of recourse for women who were not getting paid equally for work of comparable worth.

In 1974 the Iowa State Board of Regents introduced a system of compensation that was designed to evaluate each job’s worth objectively and establish internal equity among university jobs. The system was created to eliminate the disparity against those in job categories dominated by women. At the University of Northern Iowa, all clerical employees were women, while the majority of employees working in the physical plant were men. However, the local job market paid higher wages for physical plant jobs than it did for clerical jobs, and so the starting salary for physical plant jobs at the university was below market. To address this, the university started its physical plant employees at a more senior level in the system so that their salaries would be competitive with the market. Consequently, the university paid physical plant employees, mostly men, more than clerical employees, all women, for jobs that had been assessed as being at the same labor grade. The clerical employees sued the university for maintaining this wage disparity as sex discrimination violating Title VII of the Civil Rights Act. The district court, affirmed by the Tenth Circuit Court of Appeals, dismissed the claim, noting that physical plant jobs were open equally to male and female applicants and holding that there was no intention in passing Title VII to interfere with the market and “abrogate the laws of supply and demand or other economic principles that determine wage rates for various kinds of work.”30 In other words, if market forces discriminate against women by paying them less for jobs of comparable worth, the courts will not intervene, and the discrimination will continue.

In 1982, the American Federation of State, County, and Municipal Employees (AFSCME) sued the state of Washington in a class action lawsuit on behalf of state employees working in job categories that were occupied at least 70 percent by women. The state of Washington’s study of wage disparity between men and women had evaluated jobs on the basis of knowledge and skills, mental demands, accountability, and working conditions, assigning points to each category. A wage disparity of 20 percent was documented between job categories in which women predominated by 70 percent compared with job categories in which men predominated by 70 percent. The district court found that the failure of Washington State to adopt and implement a remedial program to equalize this disparity in compensation constituted sex discrimination under Title VII of the Civil Rights Act.³¹ The Ninth Circuit Court of Appeals reversed, recalling that “liability for disparate treatment hinges upon proof of discriminatory intent,” and noting the “failure by AFSCME to establish the requisite element of intent by either circumstantial or direct evidence.”³² In the Ninth Circuit court decision, Judge Anthony Kennedy—since elevated to the Supreme Court—expressed great concern about interfering with the free market:

The State of Washington’s initial reliance on a free market system in which employees in male-dominated jobs are compensated at a higher rate than employees in dissimilar female-dominated jobs is not in and of itself a violation of Title VII, notwithstanding that the Willis study deemed the positions of comparable worth. Absent a showing of discriminatory motive, which has not been made here, the law does not permit the federal courts to interfere in the market-based system for the compensation of Washington’s employees.33

In a similar prior case from Denver, Colorado, seeking to address underpayment of nurses, a female-dominated profession, the Tenth Circuit Court of Appeals in 1980 held that with regard to pay differentials between nurses and other male-dominated professions, such as real estate appraisers, “This type of disparity was not sought to be adjusted by the Civil Rights Act, and is not within the equal protection clause.”³⁴ In the district court decision, which the Tenth Circuit court affirmed, Judge Fred M. Winner was outspoken in his acknowledgment of past discrimination and his view of the lack of congressional purpose to remedy it: “[W]hat we are confronted with here today is history . . . which I have no hesitancy at all in finding has discriminated unfairly and improperly against women. But Congress did not, in my judgment, decide that we were going to roll aside all history and that the Federal Courts should take over the job of leveling out centuries of discrimination.”³⁵

Canada has a federal pay equity statute as well as comparable worth programs in Quebec, Manitoba, and Ontario. The European Union Council of Ministers adopted an Equal Pay Directive in 1975 providing that equal pay means “for the same work or for work to which equal value is attributed.”³⁶ The Swiss constitution was amended in 1981 to include similar language, and the United Kingdom, Sweden, and Australia all have legislation providing for equal pay for work of comparable worth.³⁷ Here in the United States, while the case law limiting legal recourse for pay inequity goes back to the 1970s, women are still going to court forty years later, determined to seek justice for the pay inequity in their work lives but unable to find it in the current federal legal framework.

In 2013, Tracy Rexroat joined the long list of women before her who sought and were denied justice for pay inequity. In 2007, Tracy was hired to work for the Arizona Department of Education as an education program specialist. Her starting salary was more than $17,000 lower than her male peers’ when she was hired, and it remained well below theirs three years later in 2010. Tracy sued the Department of Education for pay discrimination, in part on the basis of the discrepancy in starting salaries. The district court in Arizona relied on the 1982 Kouba v. Allstate case, described earlier, to remind Tracy that unequal starting salaries “do not violate the Equal Pay Act . . . as long as there was ‘an acceptable business reason’ for basing wages on prior salary. . . .”38 Regardless of Tracy’s actual prior experience, her prior salary was used as a measure of experience, which has been deemed by the courts to be “an acceptable business reason” for gender pay disparity rather than a manifestation of sex discrimination.

“Equal means equal” means that if there are systemic indicators that women are paid less than men, there should be an effective legal remedy to address this inequality. Whether intentional or not, pay inequity is harmful to women and constitutes discrimination based on their sex. Title VII was clearly intended to address disparate impact, regardless of intent, recognizing that the real problem was disparate impact that results in unequal treatment of men and women regardless of whether it is intentional. But the Supreme Court has made it clear that disparate impact is only a violation of constitutional rights under the Fourteenth Amendment if it is intentional, and the courts have made it clear that they do not want to interfere with market forces, even if these market forces preserve the status quo. But the status quo is what needs to change if women and men are to be equal in the workplace.

What is missing from the Fourteenth Amendment as it has been interpreted by the courts is a results-based approach to gender equality. Starting with the inequality that has been statistically documented between the salaries of women and the salaries of men, the courts have blocked efforts to address the root causes of this discrimination. By allowing prior salaries, which incorporate and reflect the history of discrimination against women, to be used as a basis for differentiating current salaries, the law ensures that the difference carries forward. By shielding market forces, which also reflect the lesser value that has been given to women in the workplace, the law ensures that market forces continue to reflect the pay inequity that they have historically reflected.

The Paycheck Fairness Act was reintroduced in Congress for the third time in 2013, co-sponsored by Senator Barbara Mikulski from Maryland and Representative Rosa DeLauro from Connecticut.39 If passed, this act would amend the Equal Pay Act to allow for additional remedies, such as punitive damages against employers who discriminate. It would facilitate class action lawsuits and prohibit employer retaliation for sharing salary information. It would also limit the defense that a wage differential is based on “any factor other than sex” to bona fide factors such as education, training, or experience. However, in April 2014, the bill was blocked in the Senate by a vote of 54 to 43.

The courts have explicitly stated that it is not for them to “roll aside all history” and to “take over the job of leveling out centuries of discrimination.” An Equal Rights Amendment to the Constitution with the purpose of remedying discrimination could make it their job to change history and end sex discrimination rather than facilitating its continuity. An Equal Rights Amendment could have been used to invalidate the reliance by Allstate Insurance Company on prior salaries as a “factor other than sex” to start Lola Kouba at a lower salary than her male colleagues. An Equal Rights Amendment could have been used to enable Betty Dukes to challenge the systematic disparity between women and men in their pay and promotion by Walmart without having to prove that there was an explicit corporate policy in place to create this disparity. And an Equal Rights Amendment could have been used to ensure that women working for the Iowa State Board of Regents as clerical employees were paid the same as men working for Iowa State as physical plant employees.

It is inherently unfair to perpetuate the relatively lower starting salaries of women, to pay women less and promote them more slowly, and to value the work that women do less than the work that men do when the same level of knowledge, skills, and responsibility are required. An ERA setting forth the principle of sex equality may not end this injustice immediately, but it will offer women a more effective avenue of legal recourse. This could make a meaningful difference in the power of the law to bring real equality between women and men to the workplace.