It's an oft-repeated statistic that women earn 79 cents on the dollar compared to men. In a high profile move to fix that, Massachusetts recently passed a law targeting employee/employer relationships in the workplace. The law has received a lot of discussion for its provision banning salary discussions during job interviews, but extends meaningfully beyond that and into specific issues of pay and worker equity.
Senate Bill 2119 will almost certainly lead to a spike in employment litigation, as is its intent. What's far less certain is whether it will have any meaningful impact on the gender gap.
The unfortunate likelihood is that it won't.
The law has three main parts. In addition to the attention-grabbing ban on asking for salary history during job interviews, likely popular for reasons that have nothing to do with the gender gap, Massachusetts has also expanded the definition of equal pay for equal work to include "substantially similar" work. The state has also made it a labor violation to bar employees from discussing wages in the workplace.
It's the second provision that will send plaintiff's attorneys scrambling for their business cards.
Under the National Labor Relations Act, gender bias in pay has long been an actionable form of discrimination as long as the relevant employees do "equal work." The new law expands that right to include "comparable work," which has been defined under the law as duties among employees which are "substantially similar."
The trouble, as explained by Michael Clarkson, a shareholder with the employment firm of Ogletree Deakins, is that the law doesn't define its meaning of substantial similarity.
"It's a violation if there's a pay differential between men and women for comparable work, and that's defined as substantially similar," he said. "[But] 'substantially' and 'comparable,' these are not exactly black and white words."
"So employers can stop asking for pay history pretty easily and mostly fall into compliance with that," Clarkson added. "But what is substantially similar? That's going to be tougher to define. Some will get sued over that… and over time each of these terms will be fleshed out in case law."
Terms like comparability and substantial similarity are what lawyers refer to as a standard of reasonability. In practice their application is highly dependent on facts and case law, requiring judges to figure out just how much wiggle room to allow through trial and error. The only way to establish that is through lawsuits, creating an area of unpredictability around the law almost certain to last for several years after it takes effect in 2018.
Take, for example, maids and janitors.
In hotels maids and janitors frequently receive different pay, with janitors paid somewhat more than the maid staff. Often, however, the main difference between the two roles is area of work; janitors tend to clean the common areas, and maids tend to clean the rooms.
The difference is enough that you might, Clarkson said, be able to defend a pay gap on the basis of equal work. (For example, sometimes janitors will have duties that encompass mechanical or security related maintenance.) Substantial similarity puts the issue far more in question.
"I would think now you wouldn't be able to do that," he said. "They [the court] would say the maid and the janitor are substantially similar. They work fairly independently providing cleaning services to guest accessible spaces in the hotel. The maids tend to be women, the janitors in Hotel X tend to be men, but they're doing substantially similar work."
Eliminating gaps like this is one of the main purposes of the Massachusetts law. It takes aim at employers who create nominal differences men and women, with a lot of potential in some cases. A hotel that gets caught using a technicality to pay its female cleaning staff less than the men would be a rightfully touted success. So, too, would be cases like those of Democratic National Convention speakers Jensen Walcott and Jake Reed (fired from a pizza parlor for discussing their 25 cent pay difference).
Yet at the same time there's good cause to doubt a law that seems looking for dragons to slay.
One trouble with complex debates is how easily they settle into a stories about heroes vs. villains, including when the subject is labor and economic policy. Passionate, well-meaning people buy into a Manichean narrative about discriminatory bosses, and the result is laws like SB2119. But the truth is more complex than that, and a law written to correct employers' behavior probably won't be up to the challenge.
"My intuition is that it probably won't make much difference," said Gary Burtless, an economist with the Brookings Institute.
While no economists reasonably dispute that discrimination still exists, most research shows that the 79 cents talking point (no matter how popular) is simply bunk. The real number may actually be closer to 95 cents once you control for individual choices, work experience and profession.
"There's still pure prejudice against women in many lines of work," Burtless said, "but I think something else that matters is that, even though women don't drop out of the labor force for many years at a time, nonetheless a lot of women do look for jobs where they will not be compelled to work really, really long hours in the course of a week. If they know that the work week will be 40 hours and it will be a predictable 9 in the morning to 5:30 at night, that is a more attractive option to women than to men."
Economists still debate the reasons why the genders have such a different attitude towards lifestyle in the workplace, including the degree to which discrimination and maternity influences a woman's choices. However the data is consistent, down to the number of hours worked per day. Women log in an average of 7.8 hours per full-time day compared to 8.4 for men.
Even within the same profession women tend to prioritize work/life balance more than men, gravitating into fields of practice that have better lifestyle returns but less pay. Medicine, for example, provides an excellent test case.
In a striking achievement over the past several decades, medical school enrollment has reached near-parity among the genders. According to data from the Kaiser Family Foundation, in 2015 approximately 47% of all medical school graduates in America were women.
"Without any doubt, women have made huge strides since the 1970s," Burtless said. "Unquestionably it's one of the most prestigious, highest paid jobs in the United States. [But] a lot of women might be inclined to take positions where the demands on their time might be more manageable and very predictable, whereas men might be willing to take positions where huge demands and erratic demands on their time and effort might be required."
Meanwhile, he noted, "a lot of the highest paid specialties in medicine are specialties where you have to put up with these extreme demands on your time and the unpredictability of when you're going to be needed."
The data bear this out. According to research by the Association of American Medical Colleges, the top practice specialties for women are family medicine, psychiatry, pediatrics and obstetrics. With obstetrics as the outlier, these are among the lowest paid specialties in medicine.
The AAMC meanwhile found that male physicians emphasize surgery, emergency medicine, anesthesiology and radiology. All of these among the most highly paid specialties, but also among the most grueling on one's time.
It's a pattern that researchers find consistently.
"The gender pay gap is real," found the website Glassdoor in a representative study, "both in the U.S. and around the world… [But] the single biggest cause of the gender pay gap is occupation and industry sorting of men and women into jobs that pay differently."
None of this is to argue that discrimination doesn't exist, quite the opposite. Study after study emphasizes the fact that the gender gap is real and that discrimination plays a role. Nor should this be taken as an endorsement of the gender gap even in its current form. Some researchers, such as the Employment Policy Institute's Elise Gould, forcefully argue that women are pressured into lower paying work whether they would want it or not. Others find compelling results in fields such the law, where "female attorneys [cite] 'unsupportive work environment' as one of the top reasons for leaving their firms."
This is all true, but also beyond the scope of Massachusetts' new law.
Figuring out what SB 2119 means by substantial similarity will require years of expensive litigation, costs paid by businesses both large and small. This law will almost certainly open the floodgates of litigation as potential claimants rush to test its limits, and some of those suits will even be meritorious. Few of them, however, will make a meaningful difference against a gender gap driven by personal choices and social pressure.
If this law added some protection with little cost, it would have painlessly served a lofty goal. If it could stomp down on bias in the workplace -- whether overt, subtle or subconscious -- it would be necessary and timely legislation. A discrimination-driven gender gap of 79 cents, or even 90, would indeed demand severe action.
This is not an argument for ignoring the gender gap, nor for leaving it alone. Solutions that don't actually address the problem are often worse than doing nothing at all, as they risk a false sense of progress and the risk of complacency.
And SB 2119 is just that kind of blunt instrument. It is a law searching for dragons to slay. If only they'd found the right one.