Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America

Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America

Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America

Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America

Synopsis

Based on case studies of four organizations that were sued for pay discrimination, Legalizing Gender Inequality challenges existing theories of gender inequality within economic, sociological, and legal contexts. The book argues that male-female earnings differentials cannot be explained adequately by market forces, principles of efficiency, or society-wide sexism. Rather it suggests that employing organizations tend to disadvantage holders of predominantly female jobs by denying them power in organizational politics and reproducing male cultural advantages. The book argues that the courts have, by uncritically accepting the market explanation for wage disparity, tended to legitimate and to legalize a crucial dimension of gender inequality.

Excerpt

The decisions of federal courts in cases alleging sex-based pay discrimination reflect the tension between the law's normative commitment to equality and the courts' reverence for markets and efficiency. County of Washington v. Gunther (452 U.S. 161 [1981]), the Supreme Court ruling that fostered comparable worth litigation in federal courts, can be seen as a response to the antidiscrimination imperative. The Court would not countenance blatant discrimination against women workers just because they held different jobs from the male workers with whom they were compared. In the cases that followed Gunther, however, the lower courts limited its practical effect. They rejected comparable worth theories that relied on job evaluation studies to prove discrimination or that argued that employers were obligated to correct inequities identified in job evaluation results. Moreover, they consistently found that betweenjob pay differentials reflected market wages or acceptable business judgments rather than invidious, gender-based policies. The courts rendered these judgments case by case. Yet the opinions contain either sweeping references to the “economic realities” confronted by employers or only the most cursory analyses of market conditions. Our reading of the opinions is that the final outcomes of these cases were influenced by a deeply held, promarket ideology that may have extended beyond the facts in particular cases.

Much of the rest of this book examines whether the courts' belief in markets and efficiency as the primary determinants of the male-female wage gap is well founded empirically. The focus of this chapter is the law itself. One of our objectives here is to set the legal context for the social-scientific analyses that follow. We briefly describe the evolution of the law against sex-based pay discrimination, examine the judicial treatment of comparable worth lawsuits, and report the frequency and success rates of various types of pay discrimination theories in the postGunther era. This analysis establishes the significance for law of our empirical investigation of the four cases. It also allows us to locate our case studies within pay discrimination cases as a group. The analysis of . . .

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