The Statutory Public Interest in Closing the Pay Gap

This Essay explores the role that the statutory public interest should play in the enforcement of rights under the Equal Pay Act of 1963 (EPA). Current data shows that, even fifty-five years after the enactment of federal law outlawing sex based pay discrimination, the gender pay gap inflicts huge costs on women, their families, and the U.S. economy, echoing the public concerns that led to the statute’s original passage. That Fair Labor Standards Act of 1938 (FLSA) and EPA rights cannot be waived by an employee calls into question two common employer pay-setting practices often excused under federal law: setting pay by individual negotiation and basing pay on an employee’s prior salary. As this Essay argues, both practices unfairly benefit employers due to unequal information and bargaining power; as such, allowing them to excuse unequal pay constitutes a forced waiver of an employee’s EPA rights. Part I of this Essay reviews existing law under Title VII of the Civil Rights Act of 1964 and the EPA before turning to examine the statutory public interests and related limitations on waiver of FLSA and EPA rights. Part II applies these considerations to the modern workplace, first identifying the public interests in closing today’s gender pay gap, then considering employer pay-setting practices through the lens of the nonwaivability of EPA rights. Importantly, this Essay in no way seeks to advocate for a protectionist approach or to imply that women need special treatment in compensation practices. Instead it seeks to expose a significant proportion of the gender pay gap for what it actually is: the result of unfair competition and unfair labor practices that injure the public interest and the U.S. economy. Just as a law that requires a minimum wage and an overtime premium for all workers is not “protection” for a special group but, instead, a minimum labor standard that helps the entire U.S. economy, so too is a law that requires for equal pay regardless of sex. Underpaying female workers—who now compose nearly half of the paid workforce and provide 40 to 100% of household income in half of all families with children—hurts the entire U.S. economy. Both the FLSA and the EPA were passed with the public concern in mind; it is time to revisit this intention

Unifying Antidiscrimination Law Through Stereotype Theory

Has litigation under Title VII of the Civil Rights Act of 1964 reached the limit of its utility in advancing workplace equality? After four decades of forward progress on antidiscrimination law in the courts, Supreme Court decisions in the last decade have signaled a retrenchment, disapproving of key theories scholars and advocates had pursued to address workplace discrimination in its modern, more subtle and structural forms. Yet sex and race inequality at work endure, particularly in pay and at the top of organizations. Notably, while the Roberts Court majority appears skeptical that discrimination persists and resistant to recognizing the role of employers in continued inequality, one subset of discrimination cases has enjoyed relative success in the courts: sex discrimination cases relying on the legal theory of sex stereotyping. In particular, plaintiffs alleging that they were discriminated against at work based on the operation of sex stereotypes related to family caregiving responsibilities or transgender status have pushed federal appellate and district courts toward a contemporary understanding of the operation of bias. Despite this unusual success during an otherwise bleak period in antidiscrimination law, advances in caregiver and transgender discrimination lawsuits remain on the margins, siloed in their own category of litigation. This Article argues that theoretical and doctrinal advances in sex stereotyping cases have broad application, with the potential to reinvigorate employment discrimination litigation under Title VII as a whole. The Article suggests that precedent from pioneering sex discrimination cases can and should be applied to cases alleging discrimination on other bases, including race and national origin. It proposes a more coherent, unified approach to antidiscrimination law that capitalizes on recent courts’ recognition of the operation of sex stereotypes at work. In an era in which the advancement of equality has stalled in both the workplace and the Supreme Court, a unified approach to Title VII litigation framed around stereotype theory offers an important path forward for antidiscrimination law

Equal Work

Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average eighty cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only seventy-one cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was thirty-five years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in women\u27s hours worked and time off for childbearing, and in minority workers\u27 education and experience levels), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation--meaning the unequal distribution of women and racial minorities across job fields--and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities\u27 work, and what, if anything, can antidiscrimination law do to respond? Existing federal law prohibits sex and race discrimination in pay, but requires an employee to provide proof of an employer\u27s intent to discriminate or a nearly identical “comparator” of a different sex or race performing “equal work” who is paid more. Current proposals for reform focus on narrowing an employer\u27s defenses in a lawsuit alleging unequal pay. This approach, while likely to improve plaintiffs\u27 successes in court, misses the forest for *582 the trees. Leaving the definition of “equal work” untouched in threshold requirements for legal protection fails to account for the workforce segregation and gender and racial stereotyping at the root of much of the current pay gaps. This Article explores how the limitations of existing law allow the gender and racial pay gaps to persist and analyzes proposals for improvement. To do so, the Article contrasts current reform efforts with alternatives, including the historical movement in the 1980s for “comparable worth” legislation and its echo in recently enacted laws in three states requiring equal pay for “substantially similar” or “comparable work.” Given the difficulty of enacting legislative change at the federal level, the Article then proposes a reframing of the concept of “equal work” in existing law by drawing on examples of broader definitions used to set pay in some union, government, and private sector employment contexts. Debunking the outdated criticism that strong equal pay laws force employers to “compare apples and oranges” and framing the comparison of “equal work” more broadly are essential to overcoming the impacts of occupational segregation and stereotyping on pay, and to closing the pay gaps

The Undue Burden: \u3ci\u3eParental Notification Requirements for Publicly Funded Contraception\u3c/i\u3e

This article analyzes the legal impact of legislative proposals in 1998 and 1999 to require parental notification for minors seeking publicly funded contraception. Part I explores the history of Title X and some of its amendments, the HHS interpretive “squeal rule,” and the federal courts\u27 rejection of the HHS rule based on the congressional intent behind Title X. Part II focuses on the Parental Notification Act of 1998 and its likelihood for success against a constitutional challenge, based on an analysis of precedent on parental consent requirements for contraception and abortion. Part III discusses the change in the legislative and judicial vision of adolescent privacy rights over time, from a more expansive notion of adolescents as individuals with rights to a more restrictive notion of adolescents as children subject to their parents\u27 rights. The article concludes by touching upon some other legal trends that reveal this narrowing view of minors\u27 privacy rights, including an increase in statutory rape prosecution during the last decade

Rights in Recession: Toward Administrative Antidiscrimination Law

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, compels a reconsideration of the existing enforcement scheme. The Article then theorizes a new model for combining public and private enforcement efforts and using administrative procedures under existing law more robustly to leverage the relative strengths of each part of the statutorily designed compromise. This proposed model offers both a strategic response to recent economic and legal developments that threaten effective antidiscrimination enforcement and an opportunity to more perfectly realize Congress\u27s original enforcement vision

The Undue Burden: \u3ci\u3eParental Notification Requirements for Publicly Funded Contraception\u3c/i\u3e

This article analyzes the legal impact of legislative proposals in 1998 and 1999 to require parental notification for minors seeking publicly funded contraception. Part I explores the history of Title X and some of its amendments, the HHS interpretive “squeal rule,” and the federal courts\u27 rejection of the HHS rule based on the congressional intent behind Title X. Part II focuses on the Parental Notification Act of 1998 and its likelihood for success against a constitutional challenge, based on an analysis of precedent on parental consent requirements for contraception and abortion. Part III discusses the change in the legislative and judicial vision of adolescent privacy rights over time, from a more expansive notion of adolescents as individuals with rights to a more restrictive notion of adolescents as children subject to their parents\u27 rights. The article concludes by touching upon some other legal trends that reveal this narrowing view of minors\u27 privacy rights, including an increase in statutory rape prosecution during the last decade

Rights in Recession: Toward Administrative Antidiscrimination Law

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, compels a reconsideration of the existing enforcement scheme. The Article then theorizes a new model for combining public and private enforcement efforts and using administrative procedures under existing law more robustly to leverage the relative strengths of each part of the statutorily designed compromise. This proposed model offers both a strategic response to recent economic and legal developments that threaten effective antidiscrimination enforcement and an opportunity to more perfectly realize Congress\u27s original enforcement vision

Confronting the Racial Pay Gap

For several decades, a small body of legal scholarship has addressed the gender pay gap, which compares the median full-time earnings of women and men. More recently, legal scholars have begun to address the racial wealth gap, which measures racial disparities in family economic security and wealth accumulation. Yet a crucial component of both the gender pay gap and the racial wealth gap remains unaddressed in the legal literature: the pay gap between the earnings of White workers and workers of color. Today, all women average eighty-two cents to each dollar men earn, but Black and Latinx workers average only seventy-four cents on the dollar to White workers. Black and Latinx women, affected by both racial and gender pay gaps, average a mere sixty-three and fifty-five cents respectively per White men’s dollar. And while the gender pay gap has narrowed, albeit slowly over time, the racial pay gap has grown. Black and Latinx workers now earn less relative to White workers than they did in the late 1970s. The lack of legal attention to the racial pay gap reflects a belief that to remedy the problem would take major social change to dismantle the education, criminal justice, and other systems that lead Black and Latinx workers to disproportionately hold lower paid jobs. While wide scale change may benecessary (and still insufficient) to fully close the racial pay gap, more can and should be done to narrow it now. The racial pay gap has worsened despite significant gains in educational attainment by Black and Latinx Americans. Economists have documented that between one-third and two-thirds of today’s racial pay gap cannot be attributed to known causes and is due to “unobservable” factors including discrimination. A handful of states have added the protected class of race in recent amendments to strengthen their state law versions of the federal Equal Pay Act. This Article details the scope of the racial pay gap that may be reachable through antidiscrimination law and provides new legal strategies for doing so. Yet beyond strengthening pay discrimination claims, this Article argues for tackling structural pieces of the racial pay gap even as we work toward improving those structures-—for example, by limiting the present effects on pay of racially disparate criminal justice and education systems. Recent public reckoning from the #MeToo and Time’s Up movements has sparked renewed interest in closing the gender pay gap. The growth of the Black Lives Matter movement in the wake of the killing of George Floyd has drawn attention to the racial wealth gap as part of the legacy of White supremacy. But interest in the equally important—-and not insurmountable—-issue of closing the racial pay gap has yet to catch on. This Article begins the process of reframing to highlight how confronting the racial pay gap is an essential but overlooked piece of the zeitgeist, key to resolving the gender pay gap for women of color, the racial wealth gap, and income inequality overall

Public-Private Co-Enforcement Litigation

Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations. Existing scholarship details the relative advantages of these separate and parallel public or private enforcement options. Yet scholars have paid little attention to their beneficial overlap. This Article argues that recent restrictions on both halves of hybrid enforcement systems now jeopardize adequate levels of civil public law enforcement, requiring a new approach. By design, hybrid federal statutes included financial incentives to encourage private enforcement to supplement the efforts of resource-constrained public agencies. Over time, concerns that profit-motivated plaintiffs’ attorneys were failing to serve the public interest sparked litigation reform efforts to reign in class actions. When combined with recent jurisprudence compelling arbitration and intensifying pleading standards, access to federal courts for private enforcers has become seriously restricted. As a result, scholars have called on public agencies to expand oversight of plaintiffs’ attorneys and fill enforcement gaps where private enforcement is now foreclosed. Yet the same deregulatory instincts that sparked reforms in procedural jurisprudence have also afflicted federal agency enforcement. While civil litigation scholars focused on developments in the courts, a concerted political effort sought to cabin administrative authority and limit agency action. The result has been a seismic shift toward smaller federal government, dashing hopes that public enforcers will be able to pick up the civil enforcement slack any time soon. As much as civil litigation reforms have restricted private enforcement, a new era of deregulation has constrained public enforcement in foundational ways, unlikely to be overcome by a mere change in presidential administration. Regardless of one’s view on the relative merits of public or private enforcement, two hobbled parallel enforcement tracks may no longer be enough to secure crucial public laws. This Article proposes combining and integrating public and private enforcement efforts, to move beyond a traditional parallel hybrid approach, toward integrated public agency-private plaintiff “co-enforcement” litigation that can stem this deregulatory slide. The Article considers the theoretical basis for moving toward co-enforcement, the normative imperative for doing so, and the doctrinal and practical issues involved

Shattering Stereotypes

Amidst the paradoxical landscape of gender progress and regression, this article explores the intricate intersection of recent legal developments and persistent gender disparities. As the U.S. Supreme Court attains near gender parity, paradoxically, its Dobbs opinion overturns Roe v. Wade, spotlighting the precarious state of reproductive autonomy. Professor Kerri Stone\u27s seminal work, Panes of the Glass Ceiling, illuminates pervasive gender stereotypes shaping workplace dynamics. Beyond examining stereotyping\u27s legal implications, Stone reveals the unspoken beliefs manifesting as distinct panes of the glass ceiling. This analysis delves into each pane, underscoring the evolving challenges facing women in contemporary workplaces and offering a nuanced legal framework to navigate and dismantle entrenched gender biases