Publication Date

1984

Document Type

Article

Abstract

Despite statutes intended to remedy wage disparities between men and women, the average woman working full-time earns only sixty percent as much as her male counterpart. While a portion of the earnings differential is attributable to "pure" or intentional discrimination, approximately eighty-two percent of the difference is due to occupational segregation. As commonly understood, occupational segregation refers to the situation in which women work at jobs that historically have been held by women and that are less remunerative than jobs usually held by men.

Only recently has the distinction between intentional discrimination and discrimination resulting from occupational segregation commanded much attention. Intentional sex-based wage disparity, the condition traditionally depicted as discriminatory, usually involves women who perform the same work as men but who are paid less because they are female. Job segregation, on the other hand, results in a more subtle form of wage discrimination. While half of all male workers are employed in more than sixty-three occupations, half of all female workers are concentrated in only seventeen job categories. A significant majority of the female work force "remains clustered at the bottom of the pay scale in jobs society has traditionally reserved for the female."

Occupational segregation has socio-historical roots, such as protective labor legislation, socialization differences between the sexes, and vocational choices based on traditional sex roles. A National Academy of Sciences study suggests, however, that wage discrimination based on job segregation by sex may have departed from its historical antecedents. In its 1981 report, the NAS concluded that jobs held predominantly by women are less lucrative "at least in part because they are held mainly by women." Thus, a significant portion of the sex-based pay differential is traceable to some form of discrimination against women, but is not necessarily the direct result of intentional discrimination by current employers.

While The Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 are available to challenge intentional wage discrimination, current court interpretations of these laws do not provide a remedy for women underpaid due to occupational segregation. Most interpretations of the statutes, in fact, have required only that men and women receive equal wages for the performance of substantially equal work. Yet a number of commentators have argued that the measure of a job's "worth" should be its value to the employer, whether the position is held by a male or female, minority or white.

The concept of comparable worth suggests that Title VII's prohibition against discrimination in compensation extends beyond the Equal Pay Act's ban on unequal pay for substantially equal work. Comparable worth theory posits that men and women whose jobs require similar training, responsibility, effort, and working conditions should receive the same remuneration, even though the jobs they perform are not identical or even substantially equal. The premise of the theory is that the undervaluation of jobs traditionally held by women amounts to sex discrimination in violation of Title VII.

This article analyzes comparable worth theory and seeks to determine whether either the Equal Pay Act or Title VII provides a cause of action in a comparable worth case. We will review these federal statutes and the United States Supreme Court's decision in County of Washington v. Gunther, the case that resolved the question of the interplay between the statutes. We then will examine the cases subse­quent to Gunther, focus on the problems of proving and defending comparable worth cases, and advance a new theory regarding burdens of proof in comparable worth litigation.

Publication Title

University of Colorado Law Review

Volume

56

Issue

1

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