The Legal and Juridical Posture

Article excerpt

In the first of a series of articles on comparable worth, the authors responded to the question raised in the first part of the title by exploring the topic of comparable worth from a historical perspective. It presented current statistics and projected trends regarding women in the labor force. In Part II of this series, the authors discuss legislation and subsequent litigation that resulted from laws governing sex discrimination and compensation. The final article in this series addresses three major areas of disagreement on the comparable worth issue including explanations for the gender earnings gap, the economic implications of comparable worth, and measuring job value.

The first part of this series, published in the Winter 1992, Vol. 22 No.4 issue of Public Personnel Management, dealt with the historical underpinnings of comparable worth. In this article, three distinct categories under which compensation falls are defined, along with a brief discussion of the impact of comparable worth in the public and private sectors. Although the comparable worth issue is a global one, the scope of these discussions is limited to the facts and arguments pertaining to the U. S. labor force. Discussions concerning organized labor and collective bargaining are limited in scope to the historical and legal aspects of comparable worth.

Legislation

One avenue available to those concerned with correcting employment compensation discrimination is through the legislative process, both on a state and federal level.

State Laws

Massachusetts was the first to enact protective legislation affecting women. The 1867 statute limited the number of hours women and children could work. Subsequently, many states followed suit regulating working conditions and wages for women. Legal battles in the courts struck down much of this legislative activity as being unconstitutional. But in 1907, the Supreme Court in Muller v. Oregon, 208 U.S. 412 (1907), upheld states' rights to legislate in this area. There were no state laws prohibiting sex-based wage discrimination during this era of protective laws in the early 1900s (Aldrich & Buchele, 1986; Booker & Nuckolls, 1986).

In 1919, Montana and Michigan adopted equal pay legislation. But other states did not follow suit. For twenty-five years, these were the only two states which enacted equal pay laws (Booker & Nuckolls, 1986).

Between 1943 and 1946, equal pay act statutes were passed in Illinois, New York, Massachusetts, and Washington. These were very narrow in scope. Broader proposals began to be introduced in Congress beginning in 1945. By 1963, when the Equal Pay Act was passed, twenty-two states had equal pay laws.

Although the roots of comparable worth began after WWII, the modern movement started in Washington state in the 1970s. Collective bargaining helped give the movement momentum, particularly in the public sector. Eight states have implemented comparable worth legislation for state employees. Ten states have been involved in comparable worth litigation, and about half the states have laws relating to comparable worth in the public sector.

Idaho, Iowa, Massachusetts, Minnesota, New Mexico, New York, and Washington have already begun adjusting the salaries of female state employees in accordance with the conclusions of comparable worth analysis of their pay structures.

Legislatively mandated studies are now underway as a prelude to such action in California, Connecticut, Hawaii, Maine, New Jersey, Oregon, and Wisconsin. In Pennsylvania and Texas, state employee unions commissioned these studies themselves when state governments were reluctant to do so... Statutes in Alaska, Arkansas, Georgia, Idaho, Kentucky, Maine, Maryland, Massachusetts, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, and West Virginia prohibit public and private employers alike from unequally compensating male and female employees performing comparable work or work of a comparable character (Weiler, 1986: 1754-1755). …