In mid-April, Vanderbilt Law hosted Professor Stephanie Bornstein to deliver a lecture titled Unequal Pay For Equal Work: Addressing the Gender Gap in Women’s Wages, the first lecture sponsored by the Women, Law & Policy Initiative.
Bornstein is a Professor of Law and William M. Rains Fellow at Loyola Law School. She teaches and writes in employment and labor law, antidiscrimination law, and procedural law. Her scholarship focuses on legal and administrative strategies to reduce racial and gender inequality in the workplace and ensure access to justice in civil litigation.
Her lecture focused on the status of gender equality and pay in the U.S., current state-level efforts to address the gender pay gap, and why federal law, in her words, “has failed to remedy the problem.”
Bornstein explained how the gender pay gap data, which compares median earnings of all women working full time for a year compared to all men that do the same, shows a 17% gap. “On average in the United States, all women working full-time year-round earn 83 cents to the dollar earned by all men doing the same,” she said.
Some pay gap skeptics believe that data compares apples to oranges, because men and women often occupy different areas of the workforce. This, Bornstein says, is where occupational segregation comes into play.
“Twenty-six of the 30 highest-paid jobs [by occupation] in the U.S. are male-dominated, mostly filled by men, and 23 of the 30 lowest-paid jobs in the country are predominantly filled by women,” she noted.
Bornstein discussed federal efforts aimed to address the pay gap, notably Title VII of the Civil Rights Act and the Equal Pay Act of 1963. She explained that while Title VII was, at the time, an exciting piece of legislation intended to make meaningful changes toward workplace discrimination, such discrimination can be difficult to prove.
“The problem with Title VII is that it requires proof of intentional discrimination,” Bornstein said. “And I use the word intentional; it’s a term of art. It doesn’t mean conscious animus, ‘I intend to pay you less.’ There’s sort of a broader definition to it…it’s hard to prove intent.”
With new adaptations of the Equal Pay Act, spearheaded by the Biden Administration, having unsuccessfully been passed at the federal level, states have been passing their own provisions.
“At this point, there are 22 states that have state laws, and there are 72 [total] laws…and there’s a bunch of different approaches,” she explained.
Bornstein’s research focuses on these new laws, which she has grouped into four different categories.
“There’s an anti-discrimination approach which is designed to focus on the Equal Pay Act,” she explained. “Then there are three other totally new, never-in-federal-law approaches. One relates to regulating information that’s exchanged with employees for their own negotiations. The other is [a] pay transparency approach. The last approach, which is only in three states, is more of an accountability approach where the state is actually requiring employers to collect and report.”
Bornstein, after elaborating on each of these approaches and the relative success they have had in the various states that instituted them, concluded her talk with a discussion of the challenges that remain.
“The number one challenge is the manipulability or the loopholes [in] these statutes,” Bornstein said. “Compliance and enforcement are a challenge here, as they are in all workplace law.”
The second challenge is legal pushback, with states such as Michigan and Wisconsin having pending Supreme Court cases surrounding state efforts to combat the issue.
Bornstein ended by emphasizing that the relative success of these laws is going to be largely dependent on how strong gender stereotypes will remain.
“The elephant in the room is the strength of gender stereotypes, and just how sticky, how rigid, how ingrained our sense of who should do what types of jobs,” Bornstein said. “We’re seeing a general retrenchment in the ideas of gender stereotypes, and generally speaking, particularly coming from the administration. So, with the idea that this is a problem we can solve by sort of attacking the gender stereotyping, there is always going to be a pushback.”
