Equal pay for equal work

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Equal pay for equal work[1] is the concept of labor rights that individuals doing the same work should receive the same remuneration.[2] It is most commonly used in the context of sexual discrimination, in relation to the gender pay gap. Equal pay relates to the full range of payments and benefits, including basic pay, non-salary payments, bonuses and allowances.

Early history[edit]

As wage-labor became increasingly formalized during the Industrial Revolution, women were often paid less than their male counterparts for the same labor, whether for the explicit reason that they were women or under another pretext (e.g. that the jobs they did, required less skill than those done by their male counterparts). The principle of equal pay for equal work arose at the same time, as part of first-wave feminism, with early efforts for equal pay being associated with nineteenth-century Trade Union activism in industrialised countries: for example, a series of strikes by unionised women in the UK in the 1830s.[3] Pressure from Trade Unions has had varied effects, with trade unions' own patriarchal character sometimes promoting conservatism. However, following the Second World War, trade unions and the legislatures of industrialized countries gradually embraced the principle of equal pay for equal work; one example of this process is the UK's introduction of the Equal Pay Act 1970 in response both to the Treaty of Rome and the Ford sewing machinists strike of 1968. In recent years European trade unions have generally exerted pressure on states and employers for progress in this direction.[4]

International human rights law[edit]

In international human rights law, the statement on equal pay is the 1951 Equal Remuneration Convention, Convention 100 of the International Labour Organisation, a United Nations body. The Convention states that

Each Member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.[2]

Equal pay for equal work is also covered by Article 7 of the International Covenant on Economic, Social and Cultural Rights,[5] Article 4 of the European Social Charter,[6] and Article 15 of African Charter on Human and Peoples' Rights.[7] The Constitution of the International Labour Organization also proclaims "the principles of equal remuneration for equal value".[8]

The EEOC's four affirmative defenses allows unequal pay for equal work when the wages are set "pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) ... any other factor other than sex."[9] A pay differential due to one of these factors is not in breach of the Convention.

Legal situation by jurisdiction[edit]

European Union/European Economic Area[edit]

Post-war Europe has seen a fairly consistent pattern in women's participation in the labour market and legislation to promote equal pay for equal work across eastern and western countries.[10]

Some countries now in the EU, including France, Germany, and Poland, had already enshrined the principle of equal pay for equal work in their constitutions before the foundation of the EU (see table below). When the European Economic Community, later the European Union (EU), was founded in 1957, the principle of equal pay for equal work was named as a key principle. Article 141 of the Treaty of Rome says 'each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.'[11] While socially progressive, this decision does not necessarily indicate widespread progressive attitudes among the signatories to the treaty:

While this is often viewed as an example of the progressive nature of the European community, some argue that Article 141 (previously 119) was included largely as a concession to the French who already had equal pay legislation and feared that they would be at a comparative disadvantage.[12]

The EEC's legislation was clarified in 1975 by the binding and directly applicable equal pay directive 75/117/EEC.[13] This prohibited all discrimination on the grounds of sex in relation to pay; this and other directives were integrated into a single Directive in 2006 (2006/54/EC).[14]

At the national level the principle of equal pay is in general fully reflected in the legislation of the 28 EU member states and the additional countries of the European Economic Area (EEA), Iceland, Liechtenstein and Norway. The EU candidate countries of Macedonia and Turkey also adapted their legislation to EU standards.[15] The main national legislation concerning pay equity between men and women for different European countries is as follows.[16]

Country Main legal provisions
Austria The 1979 Act on Equal Treatment on Men and Women (as amended since)
Belgium The 1999 Law on Equal Treatment for Men and Women (Articles 12 and 25) and the Royal Decree of 9 December 1975.
Bulgaria Equal pay for equal work included in the labour code.[15]
Czech Republic Remuneration for work is regulated by Act no. 1/1992 Coll. on pay, remuneration for overtime, and average income; and by Act no. 43/1991 Coll. on pay and remuneration for overtime in state and some other organisations and bodies.[17]
Denmark The 1976 Act on Equal Pay for Men and Women, as amended since to include additional points.
Finland The 1995 Constitution (section 5, paragraph 4) and the Act on Equality between Men and Women (section 8, paragraph 2).
France The 1946 Constitution and Articles L.140.2 and thereafter of the Labour Code.
Germany The 1949 Constitution or 'Basic Law' (Article 3), and the Civil Code (Articles 611a and 612).
Greece The 1975 Constitution (Article 22(1)), as amended in 2001, and Law 1484/1984 (Article 4).
Hungary Equal pay for equal work included in the constitution.[15]
Ireland The 1998 Employment Equality Act (IE9909144F),[18] repealing the 1974 Anti-Discrimination (Pay) Act and the 1977 Employment Equality Act.
Italy The Constitution (Articles 3 and 37),[19] Law 903/1977 (Article 2) and Law 125/1991.
Latvia Equal pay for equal work included in the labour code.[15]
Liechtenstein Equal pay for equal work included in the civil code.[15]
Lithuania Equal pay for equal work included in the labour code.[15]
Luxembourg The 1981 law relating to equal treatment between men and women, and the 1974 Grand-Ducal Regulation of relating to equal pay for men and women (Articles 1, 2, 3(1), 3(2) and 4).
Netherlands The Constitution (Article 1) and the 1994 Law on Equal Treatment.
Norway The 1978 Act on Gender Equality.
Poland The 1952 constitution of the People’s Republic of Poland states (Chapter VII, Article 66).[20]
Portugal The Constitution (Article 59) and Law 105/1997 relating to equal treatment at work and in employment.
Romania Equal pay for equal work included in the constitution.[15]
Slovakia Equal pay for equal work included in the constitution.[15]
Spain The Constitution (Article 35), and the Workers' Statute (Articles 17 and 28).
Sweden The 1980 Act on Equality between Men and Women/Equal Opportunities Act, as amended since.
UK The Equal Pay Act 1970, as amended by Equal Value Regulations of 1983, and the Sex Discrimination Act of 1976 and 1986, superseded by the Equality Act 2010.

United States[edit]

Federal law: Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964[edit]

Legislation passed by the Federal Government of the United States in 1963 made it illegal to pay men and women different wage rates for equal work on jobs that require equal skill, effort, and responsibility and are performed under similar working conditions.[21] One year after passing the Equal Pay Act, Congress passed the 1964 Civil Rights Act. Title VII of this act, makes it unlawful to discriminate based on a person’s race, religion, color, or sex.[22] Title VII attacks sex discrimination more broadly than the Equal Pay Act extending not only to wages but to compensation, terms, conditions or privileges of employment. Thus with the Equal Pay Act and Title VII, an employer cannot deny women equal pay for equal work; deny women transfers, promotions, or wage increases; manipulate job evaluations to relegate women’s pay; or intentionally segregate men and women into jobs according to their gender.[23]

Since Congress was debating this bill at the same time that the Equal Pay Act was coming into effect, there was concern over how these two laws would interact, which led to the passage of Senator Bennett’s Amendment. This Amendment states: “It Shall not be unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex . . . if such differentiation is authorized by the provisions of the [Equal Pay Act].” There was confusion on the interpretation of this Amendment, which was left to the courts to resolve.[24] Thus US federal law now states that "employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment."[9]

Washington State[edit]

In Washington, Governor Evans implemented a pay equity study in 1973 and then another in 1977.[25] The results clearly showed that when comparing male and female dominated jobs there was almost no overlap between the averages for similar jobs and in every sector, a twenty percent gap emerged. For example, a food service worker earned $472 per month, and a Delivery Truck Driver earned $792, though they were both given the same amount of “points” on the scale of comparable worth to the state.[26] Unfortunately for the state, and for the female state workers, his successor Governor Dixie Lee Ray failed to implement the recommendations of the study (which clearly stated women made 20 percent less than men).[27] Thus in 1981, AFSCME filed a sex discrimination complaint with the EEOC against the State of Washington. The District Court ruled that since the state had done a study of sex discrimination in the state, found that there was severe disparities in wages, and had not done anything to ameliorate these disparities, this constituted discrimination under Title VII that was “pervasive and intentional.”[28] The Court then ordered the State to pay its over 15,500 women back pay from 1979 based on a 1983 study of comparable worth.[29] This amounted to over $800 million. However, the United States Court of Appeals for the Ninth Circuit overturned this decision, stating that Washington had always required their employees’ salaries to reflect the free market, and discrimination was one cause of many for wage disparities. The court stated, “the State did not create the market disparity . . . [and] neither law nor logic deems the free market system a suspect enterprise.”[30] While the suit was ultimately unsuccessful, it led to state legislation bolstering state workers’ pay. The costs for implementing this equal pay policy was 2.6% of personnel costs for the state.[31]

Minnesota[edit]

In Minnesota, the state began considering a formal comparable worth policy in the late 1970s when the Minnesota Task Force of the Council on the Economic Status of Women commissioned Hay Associates to conduct a study. The results were staggering and similar to the results in Washington (there was a 20% gap between state male and female workers pay). Hay Associates proved that in the 19 years since the Equal Pay Act was passed, wage discrimination persisted and had even increased over from 1976 to 1981.[32] Using their point system, they noted that while delivery van drivers and clerk typists were both scaled with 117 points each of “worth” to the state, the delivery van driver (a male dominated profession) was paid $1,382 a month while the clerk typist (a female dominated profession) was paid $1,115 a month.[33] The study also noted that women were severely underrepresented in manager and professional positions; and that state jobs were often segregated by sex. The study finally recommended that the state take several courses of action: 1) establish comparable worth considerations for female- dominated jobs; 2) set aside money to ameliorate the pay inequity; 3) encourage affirmative action for women and other minorities and 4) continue analyzing the situation to improve it. The Minnesota Legislature moved immediately in response. In 1983 the state appropriated 21.8 million dollars to begin amending the pay disparities for state employees.[34] From 1982 to 1993, women’s wages in the state increased 10%. According to the Star Tribune, in 2005 women in Minnesota state government made 97 cents to the dollar, ranking Minnesota as one of the most equal for female state workers in the country.

Australia[edit]

Under Australia's old centralised wage fixing system, "equal pay for work of equal value" by women was introduced in 1969. Anti-discrimination on the basis of sex was legislated in 1984.[35]

In November 2011, Australian Prime Minister Julia Gillard announced efforts by the national government to improve salaries of the 150,000 lowest-paid workers in Australia, roughly 120,000 women, by contributing A$2 billion over the next 6 years.[36]

Canada[edit]

In Canadian usage, the terms pay equity and pay equality are used somewhat differently from in other countries. The two terms refer to distinctly separate legal concepts.

Pay equality, or equal pay for equal work, refers to the requirement that men and women be paid the same if performing the same job in the same organization. For example, a female electrician must be paid the same as a male electrician in the same organization. Reasonable differences are permitted if due to seniority or merit.

Pay equality is required by law in each of Canada’s 14 legislative jurisdictions (ten provinces, three territories, and the federal government). Note that federal legislation applies only to those employers in certain federally regulated industries such as banks, broadcasters, and airlines, to name a few. For most employers, the relevant legislation is that of the respective province or territory.

For federally regulated employers, pay equality is guaranteed under the Canadian Human Rights Act.[37] In Ontario, pay equality is required under the Ontario Employment Standards Act.[38] Every Canadian jurisdiction has similar legislation, although the name of the law will vary.

In contrast, pay equity, in the Canadian context, means that male-dominated occupations and female-dominated occupations of comparable value must be paid the same if within the same employer. The Canadian term pay equity is referred to as “comparable worth” in the US. For example, if an organization’s nurses and electricians are deemed to have jobs of equal importance, they must be paid the same. One way of distinguishing the concepts is to note that pay equality addresses the rights of women employees as individuals, whereas pay equity addresses the rights of female-dominated occupations as groups.

Certain Canadian jurisdictions have pay equity legislation while others do not, hence the necessity of distinguishing between pay equity and pay equality in Canadian usage. For example, in Ontario, pay equality is guaranteed through the Ontario Employment Standards Act[38] while pay equity is guaranteed through the Ontario Pay Equity Act.[39] On the other hand, the three westernmost provinces (British Columbia, Alberta, and Saskatchewan) have pay equality legislation but no pay equity legislation. Some provinces (for example, Manitoba) have legislation that requires pay equity for public sector employers but not for private sector employers; meanwhile, pay equality legislation applies to everyone.

Criticism of equal pay for equal work[edit]

Criticism of the principle of equal pay for equal work is rare, but there is criticism of the mechanisms used to achieve it and the methodology by which the gap is measured.[40] Some right-libertarians believe that government actions to correct gender pay disparity serve to interfere with the system of voluntary exchange. They argue the fundamental issue is that the employer is the owner of the job, not the government or the employee. The employer negotiates the job and pays according to performance, not according to job duties. A private business would not want to lose its best performers by compensating them less and can ill afford paying its lower performers higher because the overall productivity will decline.[41] The Washington Post,[42]The Boston Globe,[43] and National Public Radio.[44] However, the Independent Women's Forum cites another study that found that the wage gap nearly disappears "when controlled for experience, education, and number of years on the job."[citation needed]

See also[edit]

Bibliography[edit]

  1. ^ UK Equality and Human Rights Commission: Typical use of the phrase: "The Equality Act 2010 gives women (and men) a right to equal pay for equal work".
  2. ^ a b http://www.ilo.org/ilolex/cgi-lex/convde.pl?C100
  3. ^ Mary Davis, 'An Historical Introduction to the Campaign for Equal Pay', http://www.unionhistory.info/equalpay/roaddisplay.php?irn=820; cf. New JNCHES Equality Working Group, 'The Gender Pay Gap - A Literature Review', p. 6.
  4. ^ Eva Soumeli and Kristine Nergaard, 'Gender pay equity in Europe', Eironline: European Industrial Relations Observatory On-line (January 2002), http://www.eurofound.europa.eu/eiro/2002/01/study/tn0201101s.htm, esp. tables 3 and 5.
  5. ^ International Covenant on Economic, Social and Cultural Rights, article 7
  6. ^ European Social Charter: Part II, Article 4, section 4
  7. ^ African Charter on Human and Peoples' Rights, Article 15
  8. ^ ILO Constitution, Preamble
  9. ^ a b U.S Equal Employment Opportunity Commission. EEOC Facts About Equal Pay and Compensation Discrimination, accessed on August 26, 2011.
  10. ^ Angela Movileanu, 'Equal Pay', in Encyclopedia of Women in Today's World, ed. by Mary Zeiss Stange, Carol K. Oyster, and Jane E. Sloan (SAGE 2011), pp. 491-93, at p. 492. Cf. Kristina Koldinskà, 'Gender Equality: Before and After the Enlargement of EU: The Case of the Czech Republic', European Law Journal, 13 (2007), 238–52, esp. p. 240.
  11. ^ http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=c19ons_tre&model=guichett. Jill Rubery, 'Equal Pay and Europe', http://www.unionhistory.info/equalpay/roaddisplay.php?irn=785; cf. New JNCHES Equality Working Group, 'The Gender Pay Gap - A Literature Review', p. 7.
  12. ^ New JNCHES Equality Working Group, 'The Gender Pay Gap - A Literature Review', p. 7 fn. 15, citing Townsend-Smith, Sex Discrimination in Employment (London: Sweet and Maxwell, 1989).
  13. ^ http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=31975L0117&model=guichett
  14. ^ New JNCHES Equality Working Group, 'The Gender Pay Gap - A Literature Review', p. 7.
  15. ^ a b c d e f g h Petra Foubert, The Gender Pay Gap in Europe from a Legal Perspective (Luxembourg: Publications Office of the European Union, 2010), http://ec.europa.eu/justice/gender-equality/files/gender_pay_gap/genderpaygapfromlegalperspective-nov2010_en.pdf, p. 12.
  16. ^ Unless otherwise stated, data is from Eva Soumeli and Kristine Nergaard, 'Gender pay equity in Europe', Eironline: European Industrial Relations Observatory On-line (January 2002), http://www.eurofound.europa.eu/eiro/2002/01/study/tn0201101s.htm, table 2.
  17. ^ Kristina Koldinskà, 'Gender Equality: Before and After the Enlargement of EU: The Case of the Czech Republic', European Law Journal, 13 (2007), 238–52.
  18. ^ http://www.eurofound.europa.eu/eiro/1999/09/feature/ie9909144f.htm.
  19. ^ "The Italian Constitution". The official website of the Presidency of the Italian Republic. : "Working women are entitled to equal rights and, for comparable jobs, equal pay as men. Working conditions must allow women to fulfil their essential role in the family and ensure appropriate protection for the mother and child."
  20. ^ Amos Jenkins Peaslee, ed., Constitutions of Nations (Brill Archive, 1956), p. 197.
  21. ^ Equal Pay Act of 1963, finduslaw.com
  22. ^ “Civil Rights Act of 1964.” 42 U.S.C. § 2000e-2000e-17
  23. ^ Williams, Robert et al. Closer Look at Comparable Worth: A Study of the Basic Questions to be Addressed in Approaching Pay Equity. National Foundation for the Study of Equal Employment Policy: Washington, DC, 1984, pg. 28.
  24. ^ Webber, Katie. “Comparable Worth—It’s Present Status and the Problem of Measurement.” Hamline Journal of Public Law, Vol. 6, No. 38 (1985), pg. 37.
  25. ^ Remick, Helen. “ ‘A Want of Harmony’: Perspectives on Wage Discrimination and Comparable Worth.” Ed. Remick, Helen. Comparable Worth and Wage Discrimination: Technical Possibilities and Political Realities. Temple University Press: Philadelphia, 1984, 102.
  26. ^ Steinberg, Ronnie. “ ‘A Want of Harmony’: Perspectives on Wage Discrimination and Comparable Worth.” Ed. Remick, Helen. Comparable Worth and Wage Discrimination: Technical Possibilities and Political Realities. Temple University Press: Philadelphia, 1984, pg. 102.
  27. ^ Stewart, Debra A. “State Initiatives in the Federal System: The Politics and Policy of Comparable Worth in 1984.” Publius, Vol. 15, No. 3 (Summer 1985), pg. 84.
  28. ^ American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), et al. v. State of Washington et al. No. C 82-465T (District Court for the Western District of Washington), 1983.
  29. ^ Legler, Joel Ivan. “City, County and State Government Liability for Sex-Based Wage Discrimination After County of Washington v. Gunther and AFSCME v. Washington.” The Urban Lawyer, Vol. 17, No. 2 (Spring 1985), pg. 241.
  30. ^ American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), et al. v. State of Washington et al. 770 F.2d 1401 (9th Cir), 1985.
  31. ^ National Committee on Pay Equity,” pay-equity.org, Accessed Nov. 8, 2010
  32. ^ Cook, Alice H. Comparable Worth: A Case book of experiences in states and localities. Industrial Relations Center: University of Hawaii at Manoa, 1985, pg. 141
  33. ^ “Pay Equity: The Minnesota Experience: Fifth Edition.” Legislative Commission on the Economic Status of Women, April 1994, pg. 13.
  34. ^ Stewart, Debra A. “State Initiatives in the Federal System: The Politics and Policy of Comparable Worth in 1984.” Publius, Vol. 15, No. 3 (Summer 1985), pg. 91.
  35. ^ Department of Foreign Affairs and Trade, http://www.dfat.gov.au/facts/women.html
  36. ^ Coorey, Phillip (10 November 2011). "Gillard's $2bn equal pay push to see lowest-paid workers' salaries soar". Sydney Morning Herald. Retrieved 10 November 2011. 
  37. ^ Canadian Human Rights Commission, http://www.chrc-ccdp.ca
  38. ^ a b Ontario Ministry of Labour - Employment Standards, http://www.labour.gov.on.ca/english/es/
  39. ^ Ontario Pay Equity Commission, http://www.payequity.gov.on.ca
  40. ^ Bialik, Carl. "Not All Differences in Earnings are Created Equal". Wall Street Journal. Retrieved 10 April 2014. 
  41. ^ Michael Tennant. The Justice of Pay Discrimination, LewRockwell.com, accessed on August 26, 2011.
  42. ^ Vedantam, Shankar (2009) “Caveat for Employers.” Washington Post, June 1, 2009, page A8
  43. ^ Jackson, Derrick (2009) “Subtle, and stubborn, race bias.” Boston Globe, July 6, 2009, page A10
  44. ^ National Public Radio, Lake Effect

External links[edit]