Sex Discrimination in the Workplace: It’s Not Over After All These Years

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November 1, 2012
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Ariela Migdal

Despite the fact that core civil rights protections against employment discrimination have been in place for decades, and despite the fact that women have entered the workplace in droves, mistreatment of women workers persists.1 Women still make only 77 cents for every dollar earned by men half a century after Congress enacted the Equal Pay Act in 1963, the first of a series of federal laws designed to ensure that women workers are treated equally. Pregnant workers, new mothers, and women working in traditionally male arenas face particularly acute discrimination.

Women who work in male-dominated sectors like shipping, police work, and baggage handling face different forms of pregnancy discrimination than do office workers. Many white-collar workers can expect to work through pregnancy without requiring any temporary job modifications apart from flexibility to attend doctors’ appointments. But jobs in male-dominated sectors — as well as some jobs in traditionally female sectors like home care, nursing, and waitressing — frequently involve lifting, standing for long periods, and the inability to take frequent breaks. Women who work in these types of jobs sometimes require minor, temporary adjustments when they are pregnant. Even though employers routinely grant adjustments of similar scope to non-pregnant workers, such as workers who are injured “on the job,” they often deny those same modifications to pregnant women, forcing them to take unpaid leave or exit the workplace entirely.

Employers’ policies toward breastfeeding mothers reflect an assumption that women, once they become mothers, should be home with their children. The American Civil Liberties Union (ACLU) recently settled a case brought on behalf of a teacher in Colorado who was fired after she asserted her right to pump her breast milk on the job. Fortunately, the new health-care reform law — the Patient Protection and Affordable Care Act — contains provisions requiring employers to give hourly employees reasonable unpaid breaks and to also provide a private place, other than a bathroom, to pump. How women are treated on the job is intricately linked to opportunities for achieving workplace equality.

Even today, many women claim that their employers still make personnel decisions based on gender stereotypes, like the assumption that men are the breadwinners and women work for “extra” money, rather than to support their families. Proving that individual decisions to pay women less than their male co-workers is motivated by discrimination is very difficult. While some women workers are turning to class action suits to challenge company-wide practices, the Supreme Court — in ruling on the claims of thousands of women workers at Wal-Mart around the country last year in the case of Wal-Mart Stores, Inc. v. Dukes — made it more difficult for workers to use class actions to challenge systemic discrimination.

Discriminatory decisions — about remuneration and working conditions — are frequently hidden, sometimes even from the women who are the victims of the disparities. This was the case for Lilly Ledbetter, a woman who, for years, did not know that she was being paid less than her male colleagues at Goodyear & Tire Rubber Company. By the time she learned of the discrimination and brought suit, the U.S. Supreme Court ruled that it was too late, despite decades of court decisions to the contrary. While Congress and President Barack Obama took steps toward correcting these injustices when they enacted the Lilly Ledbetter Fair Pay Act of 2009, more work remains to be done. Women’s rights activists, including my colleagues at the ACLU, are working to pass a bill called the Paycheck Fairness Act, which would prohibit retaliation against workers who ask about possible wage inequities and give women other tools to help close the persistent gender pay gap. Women won’t gain equal footing at work until we, as a society, are ready to call these practices discrimination, and force employers to abandon them.

1 In the mid-1950s, fewer than 40 percent of women ages 24-54 worked in the labor market, whereas by 2000 more than 70 percent did. See “Stretched to Limit, Women Stall March to Work” by Eduardo Porter in The New York Times, March 2, 2006. Legislative changes include the Equal Pay Act of 1963, which prohibited wage discrimination; Title VII of the Civil Rights Act of 1964, which prohibited sex discrimination in employment; and the Pregnancy Discrimination Act of 1978, which prohibited discrimination in employment based on pregnancy and related conditions.

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Ariela Migdal is a senior staff attorney at the American Civil Liberties Union’s Women’s Rights Project. Her work focuses on litigation, including class actions, as well as advocacy to combat discrimination against women in traditionally male-dominated occupations. She has also litigated in the areas of gender equality in education and housing, and religious freedom in the criminal justice system. She has worked as a law clerk for Justice Stephen G. Breyer on the Supreme Court of the United States and at the Nazareth office of the Israel Public Defender.

1 Comment

  1. Re: “Women still make only 77 cents for every dollar earned by men”

    Here’s just one example of why on average even the most sophisticated, educated women earn less than men even in the exact same profession:

    “In 2011, 22% of male physicians and 44% of female physicians worked less than full time, up from 7% of men and 29% of women from Cejka’s 2005 survey.” http://www.ama-assn.org/amednews/2012/03/26/bil10326.htm

    No law yet has closed the gender wage gap — not the 1963 Equal Pay for Equal Work Act, not Title VII of the 1964 Civil Rights Act, not the 1978 Pregnancy Discrimination Act, not the 1991 amendments to Title VII, not affirmative action (which has benefited mostly white women, who share their wealth and affirmative action benefits with white men – http://tinyurl.com/74cooen), not diversity, not the countless state and local laws and regulations, not the horde of overseers at the Equal Employment Opportunity Commission, and not the Ledbetter Fair Pay Act…. Nor will a “paycheck fairness” law work.

    That’s because women’s pay-equity advocates, who always insist one more law is needed, continue to overlook the effects of female AND male behavior:

    Despite the 40-year-old demand for women’s equal pay, millions of wives still choose to have no pay at all. In fact, according to Dr. Scott Haltzman, author of “The Secrets of Happily Married Women,” stay-at-home wives, including the childless who represent an estimated 10 percent, constitute a growing niche. “In the past few years,” he says in a CNN report at http://tinyurl.com/6reowj, “many women who are well educated and trained for career tracks have decided instead to stay at home.”

    (“Census Bureau data show that 5.6 million mothers stayed home with their children in 2005, about 1.2 million more than did so a decade earlier….” at http://tinyurl.com/qqkaka. Consider also: “a 2007 Pew Study on working mothers revealed that 60 percent of full-time working moms would rather be part-time — up from 48 percent 15 years ago” at http://www.huffingtonpost.com/peggy-drexler/dont-call-him-mr-mom-the_b_1573895.html.)

    If indeed women are staying at home at a higher rate, perhaps it’s largely because feminists and the media have told women for years that female workers are paid less than men in the same jobs — so why bother working if they’re going to be penalized and humiliated for being a woman.

    As full-time mothers or homemakers, stay-at-home wives earn zero. How can they afford to do this while in many cases living in luxury? Because they’re supported by their husband, an “employer” who pays them to stay at home.

    The implication of this is probably obvious to 12-year-olds but seems incomprehensible to or is ignored by feminists and the liberal media: If millions of wives are able to accept NO wages, millions of other wives, whose husbands’ incomes range from moderate to high, are able to:

    -accept low wages
    -refuse overtime and promotions
    -choose jobs based on interest first, wages second — the reverse of what men tend to do
    -take more unpaid days off
    -avoid uncomfortable wage-bargaining (http://tinyurl.com/3a5nlay)
    -work part-time instead of full-time

    All of which lower women’s median pay.

    Women are able to make these choices because they are supported — or if unmarried anticipate being supported — by a husband who must earn more than if he’d chosen never to marry. (Still, even many men who shun marriage, unlike their female counterparts, feel their self worth is tied to their net worth.) This is how MEN help create the wage gap: as a group they pass up jobs that interest them for ones that pay well. If the roles were reversed so that men raised the children and women raised the income, men would average lower pay than women.

    From “Will the Ledbetter Act Help Women?” at http://malemattersusa.wordpress.com/2011/12/03/will-the-ledbetter-fair-pay-act-help-women/

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