The Truth About Equal Pay

Wendy Davis and the Democrats are on the attack about the Lilly Ledbetter Act, but would the bill have addressed the problem?

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Photographs by AP

The biggest substantive debate of this year’s gubernatorial campaign came about as a result of the first bill that President Barack Obama signed into law. That would be the Lilly Ledbetter Fair Pay Act of 2009, a measure that expanded the window of time workers would have for filing claims if they believed that they had been the victims of illegal wage discrimination. It was, according to its supporters, a way to help address the persistent wage gap in the United States. In the intervening years, dozens of states have passed similar laws to align their statutes with federal standards. Texas, it won’t surprise you, is not among them.

In 2013 the Legislature passed an equal-pay bill authored by Senfronia Thompson, a Democratic state representative from Houston, only to see it vetoed by Governor Rick Perry. Wendy Davis, the Democratic gubernatorial nominee, sponsored the bill in the Senate, and she has raised the issue of equal pay many times on the campaign trail, suggesting that Perry’s veto of the bill had been part of a broader pattern of disdain for women’s rights among Texas’s Republican leaders, including Attorney General Greg Abbott, the Republican candidate for governor. 

The issue caught fire on March 18, when the San Antonio Express-News reported that the female assistant attorneys general in Abbott’s office earn, on average, almost $6,000 less per year than their male counterparts. That figure, in itself, was not proof of gender-based pay discrimination, but it did give Democrats a timely piece of ammo, especially after Abbott, with some delay, finally clarified his position on the bill: if he had been governor, he would have vetoed it too. His reasoning, campaign spokesman Matt Hirsch explained, was that “wage discrimination is already against the law and [that] legal avenues already exist for victims of discrimination.” Even worse, a woman who attempted to defend Abbott on the issue—Cari Christman, the executive director of the newly formed RedState Women PAC—did little to counter the critics. “If you look at it, women are extremely busy,” she told WFAA.

On Monday Davis spoke about the issue in Austin, and her focus on it makes sense politically; this is the first time since the campaigns began that Abbott has been playing defense on a policy issue. In the resulting furor, however, a couple of points have been overlooked. There is a gender wage gap, but that doesn’t mean it is a result of direct wage discrimination, or that the bill would have mitigated the problem. And Republicans aren’t, as a group, against equal pay. Many of them, including Abbott, explicitly support it.

Let’s take those issues in order. Proponents of equal pay laws often summarize the gender pay gap by saying that where men earn a dollar, women earn just 77 cents. As the writer Hanna Rosin put it last year, this way of summarizing the issue “gives the impression that a man and a woman standing next to each other doing the same job for the same number of hours get paid different salaries.” The problem, she continued, is that’s not at all the case.

According to the Bureau of Labor Statistics, the median earnings for women who work full-time are just 77 percent of the median earnings for men who do the same. But a number of factors are at work here. Men are more likely to work continuously rather than taking time out of the labor force to care for young children, for example, and women are underrepresented in a number of highly paid industries.

Some of these dynamics are not preoccupations for Democrats in other contexts. In January, when the Congressional Budget Office reported that the implementation of the Affordable Care Act would provide a disincentive for certain hourly workers to continue working, the White House welcomed it as evidence that under the new law “individuals will be empowered to make choices about their lives and livelihoods,” including “choosing to spend more time with their families.” Men can certainly make that choice, but women are more likely to do so, and the net effect would be to exacerbate the wage gap. Setting that aside, when economists have studied the gender pay gap and controlled for correlated factors like years of experience, they have found a much narrower discrepancy than that jarring 77 percent figure that is typically cited in these contexts.

That being the case, if Democrats’ overarching goal is to narrow the wage gap, stronger wage discrimination laws are not the most effective approach. The Lilly Ledbetter Act protects only a specific subset of workers: those who have experienced direct wage discrimination but, like the woman for whom the law was named, have not realized that they were being paid unfairly within the 180-day window that federal and state law previously required. For the individual workers thus affected, the Lily Ledbetter Act, with its longer window for bringing such complaints, may prove to be an important protection. But there is no clear evidence that the federal law or the various state laws that were passed in its wake have made it easier for women (or other workers who have experienced illegal discrimination) to sue their employers for back wages successfully. The converse is also true. There is no clear evidence that the new federal law has encouraged frivolous lawsuits. An expansion of Texas’s equal pay protections may be a good idea. However, it would not have been a surefire way to improve wages for women across Texas.

The politics of the issue, too, have been overblown. Thompson’s bill was a priority for Democrats, but a number of Republicans supported it. In the Senate, where it passed by a 16–15 margin, the three Republicans who crossed over were Robert Duncan, Bob Deuell, and, perhaps most notably, the fiercely conservative freshman Donna Campbell. And it would be incorrect to say that any Republican who opposed the bill is therefore opposed to legal protections against wage discrimination. Many of the Republicans who opposed it actually did so on the basis that such legal protections already exist. In his veto proclamation, Perry noted that the bill “duplicates federal law, which already allows employees who feel they have been discriminated against through compensation to file a claim with the U.S. Equal Employment Opportunity Commission.”

In other words, Perry’s argument was that Texas workers can already file wage-discrimination claims in state courts, and that if they want to file a claim after the 180-day window allowed by state law, they can go directly to federal courts, a line of argument that was upheld by the Texas Supreme Court in 2012’s Prairie View v. Chatha. Abbott’s position is similar to Perry’s, although arguably more moderate. In his veto proclamation, the governor had also implied that although the federal law applies in Texas, he considers it too far-reaching. When I asked for clarification, the attorney general differed slightly. “Greg Abbott supports equal pay and supports the state and federal laws that already prohibit discrimination and give victims an avenue to seek redress in the courts,” said Hirsch in an email.

The disjunction between state and federal laws is confusing, and Democrats have argued that, in practice, filing a lawsuit in federal courts is harder and more expensive for the typical worker than doing so through the state system. And after a series of skirmishes in the long-running “war on women,” Texas Republicans are going to have a hard time making the case that they are a party with an unusually keen eye for women’s interests. If improving women’s economic outcomes is their key priority, though, Democrats need to suggest ideas beyond an expansion of equal pay protections.

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  • Travis

    “…when economists have studied the gender pay gap and controlled for correlated factors like years of experience, they have found a much narrower discrepancy than that jarring 77 percent figure that is typically cited in these contexts.” Interesting. Got a citation for this? What discrepancy did they find?

    • Richard Carroll

      Yep. It’s called the “lifetime age-earnings profile”; look it up. We find that, in aggregate, that there is virtually an indiscernible difference in wages (between sexes) until their early 20s, where women’s wages rise at drastically lower rate (compared to males) until approximately their mid-late 30s. From that age on, women’s and men’s salaries again increase at a similar rate, however women’s wages are lower – i.e. two upward-sloping parallel lines; men on the top, women on the bottom. What happened? Women checked out to have kids; some returned to the workforce, while others did not. Furthermore, a pregnant woman (typically) limits her devotion to work, focusing rightly on preparation for a child. She might not attend a seminar another co-worker will attend; perhaps scheduling conflicts prevent her from attending early or late meetings – those things that allow an employee to earn brownie points with their employer. I could go on, but you can easily find this information for yourself. Have a great day.

    • Erica Grieder

      Here’s a 2007 study, for example, from a couple of economists at Cornell–they put the figure at 91% after controlling for hours worked, labor market experience, etc:

      If you read through the PDF you can see that they summarize some of the previous empirical literature.

      With that said, I’m a little reluctant to put a precise number on it at all, because the average comparisons obscure the fact that there’s a tremendous amount of variation between subsets in the raw data. See, for example, this 2012 regional summary from the Department of Labor–the gender wage gap is narrower among African-Americans and Hispanics than among Anglos and Asians, among people who were never married compared to those who are divorced, among Arkansans compared to Louisianans, etc:

      • Travis

        Thank you for your response. I skimmed the Stanford link and wil read both when I get home this evening. The article has an extensive bibliography which should be useful in educating myself on this issue.

  • Anon

    I smell a specious supposition. Most working women take six weeks to “care” for their children. I don’t see how six weeks equates to the 77% pay differential.

    • Louie

      Keep in mind that the time women take off to care for children is not the only factor that contributes to the 77%. That figure doesn’t take into account different jobs, hours worked, experience/education levels, or the under-representation of women in upper-level jobs. All it does is show that the average salary for all women is 23% lower than the average for all men.The point is that you can’t conclude from that figure alone that gender discrimination is solely responsible for the 23% gap.
      If you compared a group of young lawyers to a group of old trash collectors without considering the difference in their jobs, education, etc., you might think that age discrimination is to blame for the massive gap in wages. It doesn’t mean there is no possibility of discrimination, but it does mean that you can’t automatically assume that’s the cause based on numbers alone.

  • Jmil

    ” Men are more likely to work continuously rather than taking time out of the labor force to care for young children.”
    So who takes care of these children, our next generations? Why are women punished for being care-givers to their children? Do men have to state up front when they are hired for jobs that they have children and therefore some day might have to leave early or adjust their schedules to take care of them? No. And do men with children automatically get paid less because they have children they will most likely have to care for? No. So they way life works is, when you reproduce and have children, someone HAS to take care of them. The parent that takes that responsibility should not be punished and paid less.

    • Jed

      and certainly the party (and columnist) of family values should not need to be reminded of this point.

    • Louie

      When men or women decide to remove themselves from the workforce, even temporarily and for compelling reasons, they are also choosing to surrender the months/years of job experience that they would have otherwise gained by staying in the workforce. I understand that this decision falls more often than not on the shoulders of women, many of whom have no “real” choice but to take off to care for their kids.
      Women absolutely should not be paid less simply for having kids (or adjusting their schedules, etc. as you mentioned). However, that’s not the same thing as individuals being paid less than their peers according to the reality that they have less experience than others doing that job. If I as a business owner decide that I should pay $1k over base salary for every year of experience, how is it automatically gender discrimination to pay someone with less experience less money?

      • Jed

        it isn’t the same thing.

        both things occur.

        the argument against the second (unequal pay for the same work) is obvious, which is why the conservative media (TM) wants to distract from the fact that it is demonstrably still happening.

        but the argument against the first, that pay should be based on experiewnce, or merit, or whatever, and that it is just unfortunate that women lack those things to the same degree as men … also has a response. it just isn’t as obvious, and so the conservative media can steer you to focus on this disparity while remaining confident that you won’t bother to think of the response. the response to this part is simply that a society dedicated to gender equality would make it possible for women to make the same choices as men have about how to raise their family, pursue their careers, etc.

        it isn’t simply a matter of natural law that women take time of without pay to raise children. that is the way we have it set up. so, we can’t say it is unavoidable. if we don’t like it, we can change it.

  • oldag22

    Any persons pay should be in direct proportion to their ability and performance when on the job, and I can think of no other factors which should be considered in deciding anyone’s compensation.
    BTW, I am very conservative.
    The Lily Ledbetter act was good, but it had no statute of limitations and would allow someone to go as far back in their employment history as they felt necessary. If it had limitations it would have been okay, but still done nothing to solve the problem.
    If the politicians would write a bill that were fair and honest, still allowed employers to use fair discretion, and kept govt. from mandating pay scales, I will support it.

  • Sources

    “…the White House welcomed it as evidence that under the new law “individuals will be empowered to make choices about their lives and livelihoods,” including “choosing to spend more time with their families.” Men can certainly make that choice, but women are more likely to do so…”
    Please cite your sources. Maybe women are ‘more likely to do so,’ but (and I know this is so infuriating when you have a great opinion) we should still attribute our facts, so that others can verify that they are indeed facts.

    • Erica Grieder

      Thanks for your interest in sources :) Here are some…

      In 2013, the Pew Research Center found that in 2011, the average mother with children under 18 living at home spent 21 hours doing paid work, and 32 hours doing housework or childcare; the average father spent 37 hours at paid work, and 17 on housework and childcare:

      Another 2013 study, published in the Journal of Applied Gerontology, found that women are more likely to be caregivers for people other than children (i.e., elderly parents) than men, and also that women who are caregivers are less likely to be in the labor force than women who aren’t (men who are caregivers, by contrast, are equally likely to be in the labor force as men who aren’t):

      There are a lot of similar studies out there, and their exact findings vary, but the general trendline is that women continue to spend more time on unpaid work (childcare, housework etc) than men do, on average, although men are spending more time on these forms of unpaid work than they did in the past.

  • Jed

    careful. while the 77% pay statistic is not apples to apples, there IS still a proven disparity in the way women are paid for the SAME JOBS as men, on average. may be better than 77% on average, but systemic discrimination has been demonstrated.

    in your care to make sure we don’t lose sight of the conservative spin, your fair and balanced approach manages to incorrectly diminish the original point, putting you squarely beside the point.

    • Erica Grieder

      Jed, I’m not sure what you mean by “systemic discrimination.” If you mean that American society has various structural biases that have resulted in the persistent undervaluation of industries dominated by women, or something along those lines, that’s an interesting discussion but not exactly the issue at hand.

      The discussion at hand is about a specific bill, HB 950, which would extend the window of time in which workers (women or otherwise) who have been victims of illegal wage discrimination can file a lawsuit in state courts. In theory, the measure would have made it slightly easier for workers affected by wage discrimination–not discriminatory hiring practices, not on-the-job harassment, but the narrower category of discrimination that workers like Lilly Ledbetter herself have experienced–to seek redress in the courts. But once I started researching this, I didn’t find a lick of evidence that the federal law or laws passed by other states have had this kind of effect. To be clear, I also didn’t find a lick of evidence for the opposition’s argument that the measure would have increased frivolous lawsuits. If you have any such evidence for either side, please let me know.

      • Travis

        “In theory, the measure would have made it slightly easier for workers affected by wage discrimination… to seek redress in the courts.” You say that you find no evidence that the federal or state laws have had that effect, but isn’t this statement true on its face? If you have 6 months to do x and I come along and give you 2 years to do x haven’t I simply as a matter of fact made it easier for you to accomplish x?

        Likewise, if the goal is as you say to make it easier for affected victims to redress their grievances, then having access to state courts in addition to federal courts would again, on its face accomplish the stated goal of making it easier for the victim to address her situation.

        • Erica Grieder

          In theory, yes. In theory, that would be true if the federal window was ten years rather than two. (i.e., it might be harder to prove wage discrimination ten years later, but not theoretically impossible.) That’s one of the reasons I think the bill was well-intended.

          N.b. Texans do have access to state courts in addition to federal courts on this, albeit within 180 days. The relevant Texas Supreme Court ruling is here (PDF):

      • Jed

        i am not disagreeing with your claim regarding the efficacy of similar laws.

        i am disagreeing with your intimation that there is no problem to be solved here.

        • Erica Grieder

          I’m not intimating that there’s no problem to be spotted related to any of this. My point is that there’s a disjunct between the problem Democrats are talking about (the gender wage gap) and the proposal they’re offering to remediate it (an extension of the window of time in which you can file a wage discrimination lawsuit in state courts).

  • Ana Jordan

    The White House was not referring to women in the work place when it responded to the allegation that more part time jobs were being created by the implementation of the Affordable Care Act. I believe the quote you chose: “individuals will be empowered to make choices about their lives and livelihoods,” including “choosing to spend more time with their families,” was referring to the fact that the ACA enables individuals to purchase health insurance directly (like car insurance) rather than through their employer– thereby eliminating the need to stay in a job that they hate just for the benefits. But even if it were true that ACA was causing businesses to create more part-time jobs, I think that would be a good thing for women because it would allow women to stay in the workforce instead of temporarily leaving it to raise children. Continuity would eliminate the argument that men deserve more pay because they have more experience or seniority.

    • Erica Grieder

      I agree with a lot of your intuitions here, but I disagree with the White House’s interpretation of the CBO report in question. The CBO report specifically addresses the issue of labor-force participation rate, and its argument is that people are going to have a “disincentive” to supply labor–i.e., hourly workers who make too much money to qualify for subsidies have an additional incentive to work less, or drop out of the workforce altogether, because the subsidies will kick in and offset the foregone wages. The White House’s response was basically that the Affordable Care Act will mitigate “job lock”. That’s the situation you describe where someone is stuck in a job they hate because they need the benefits–and it is a problem, and one that the ACA may indeed help with. But the CBO report was talking about a broader problem, and the White House glossed over that.

      I mentioned the gender implications of this when I wrote about the CBO report itself (link below). Women are more likely to leave the labor force to care for young children than men are. That’s not necessarily a problem for any of the women, children, or men who make that decision, and as you say, it may be a preferable outcome, but the fact that women are more likely to allocate time to unpaid work than men are is a well-documented driver of the gender wage gap. Here’s my take on the CBO report:

      I agree with you that an underrated advantage of part-time work is that it allows people to remain in the workforce (i.e. avoid gaps on their resume) while they’re allocating time to other priorities. To be clear, I’m not saying that leaving the labor force is morally wrong–I’m saying it’s an advantage because data suggest that when someone’s unemployed or out of the labor force for a long time, it’s harder for them to get back in (which is troubling too).

      • Ana Jordan

        Thanks for your response. I do agree with your larger point, that the Lily Ledbetter Act, while important, is not the center piece for equalizing women’s pay. It reminded me of a post I wrote on my FB page after a debate between Romney and Obama in October 2012: “I believe that much of the criticism Romney got in response to his references to a binder of women’s resumes and permitting a female employee to leave work early so she could make dinner for her family, have been unfair. The critics fail to recognize, and therefore fail to talk about, the important issues Romney’s comments were meant to address.
        First, the reality is that most women don’t apply for leadership positions for whatever reason. Romney did not say there weren’t any qualified women for those positions, he said qualified women were not applying for them. The fact that Romney sought out qualified women candidates resonated with me because that tells me he recognizes a very real, though self-imposed, problem that keeps women from filling leadership roles.

        Second, flexible schedules are key for women who don’t want to give up their jobs to take care of their families. Romney gave one example of a female employee who wanted to go home and “make dinner,” and he recognized that giving her the option empowers women to stay in the workforce. He did not say that making dinner is only a woman’s task. But, most women, like it or not, do want to make dinner for their families, they do want to be there when their children get home from school, they do want to spend time with their kids before they grow up. Flex schedules give working mothers and fathers, a necessary tool for balancing work and family.

        Both of these issues are important for women and I liked Romney’s answer better than President Obama’s, who brought up only the Lily Leadbetter Act (LLA), which is a good piece of legislation for women who want to sue their employers for past violations of existing laws. But, the LLA is simply not that helpful in the day-to-day lives of women who want to go forward.”

        • Erica Grieder

          With apologies for the delay–thanks for the thoughtful response (both here and with regard to the Romney-Obama debate). This is one of those issues that only gets more complex the more we look into it (and I imagine that we will continue to talk about it over the course of the campaign and in the years ahead).

  • 1bimbo

    media got it right! thank you texasmonthly for sifting through the political mumbo jumbo and getting to the meat of this matter.

    after so many missteps, the wendydavis’ campaign is desperate for a political talking point, we are smart enough to see that davis is being manipulative in equating the reason abbott doesn’t support her failed duplicate legislation is some kind of refusal to ‘support’ equal pay for women, that’s false on its face!federal discrimination law already exists, we don’t need superfluous laws on the books so that democrats can put fake feathers in their caps

  • Jay

    The 77% figure is a textbook case of a fallacy of the single cause (it’s ok to google it, I did too…). While it’s factually true to say that working women earn on average 77% of what working men earn, this is not an argument in and of itself to show wage discrimination as the cause of the pay gap.
    There are a number of factors that contribute to this gap, as explained in the article. The take-home message shouldn’t be that discrimination isn’t a problem worth addressing, it’s that women doing the same job as men do not necessarily get paid 77% of what their counterparts receive.
    It’s worth noting that the White House pays women 88% of what it pays men. If there are no other factors that affect that figure besides discrimination, the White House has some explaining to do. That said, I’d hesitate to suggest that the Obama administration intentionally discriminates against women based on that figure alone.

    • vietvet3

      I think a concrete example may help. In my profession, education, public school teachers are paid uniformly by years of service and degree level. No chance of gender discrimination. However, I have known many female teachers who “took a few years off to have a family”. I have never heard of a man who did the same, though it surely has happened. When ‘mom’ returns to teaching, she finds herself several years behind on the pay scale. Right or wrong? I don’t know, it simply is, and will remain so. It is a decision that families must face. I see no solution in the law for this.

  • emptyk

    I’m a born and bred Texan. I grew up in Houston a few blocks from David Dewhurst and Harris County Attorney Mike Driscoll. All of us were the sons of single Moms. We were redistricted into the richest public high school in the state, Lamar, years before the HISD complied with Brown v. Board. We all got a splendid college prep education at public expense.
    We all saw the legal, social and economic discrimination against women in Texas.
    Wendy Davis’s bill, vetoed by Perry and opposed by Dewhurst and Dan Patrick, would have closed a loophole in Texas law that Greg Abbott says doesn’t exist.
    When an employer, even the state, refuses to comply with the fair employment law one of the only recourse to the victim of this very-white-collar crime is to sue in court. This isn’t done lightly or easily.
    Please don’t treat civil rights lawsuits with the same flippant “tort reform-ambulance chasing” rhetoric that allows employers to disregard the law.
    Without fair access to the judicial process, Lamar High would still be separately white and extraordinarily unequal.

    • Erica Grieder

      Appreciate this & I share your concern–and as I mentioned above, the Republicans who opposed the bill because they were worried about frivolous lawsuits were totally exaggerating the threat of frivolous lawsuits, or at least, none of them has produced any evidence that the federal version of the law, or any of the subsequent state laws, have actually resulted in an increase in said suits. At the same time Democrats & Republicans who support the law haven’t produced any evidence that expanding the window of opportunity for filing these claims increases the number of such claims, or the likelihood of a settlement in the plaintiff’s favor, much less mitigated the gender pay gap. And as Abbott said, wage discrimination is illegal in Texas under both state and federal law. I think the bill was well-intentioned, and I don’t think it would have caused any harm–but I think it’s overreach for Democrats to argue that opposition to the bill was tantamount to dismantling worker protections altogether or sending women back to the olden days, etc.

      • Sara Speights

        I can’t tell you how disheartening it is for those of us who struggled with wage discrimination throughout our professional careers to see a young woman like you so lightly dismiss the horrendous impact this discrimination has had on our lives and minds. I guess I shouldn’t be surprised to see it here in Texas Monthly, which for decades has had a notorious reputation for underpaying outstanding women writers compared to what the magazine paid it’s male writers. You may be one of them and not even know it….yet. Either way, you do these women a terrible disservice.

  • GOP Julie

    I see Steve Mostyn’s fingerprints all over this issue. Another avenue for ambulance-chasing trial lawyers to make a buck.

  • Erica Grieder

    Update: for a different take on the issue, see Professor Bethany Albertson’s piece, published today