Not many jurisdictions in the
country have fallen for the fiction that women face institutionalized and
widespread discrimination in pay to explain raw differentials that show men
receive more compensation than women. Proper analysis including all intervening
variables show a
number of factors explain the difference, and when accounted for makes any
differential if not zero or actually favoring women in certain instances otherwise
trivial: differences in occupation choices, hours worked, educational
attainment, taken time off, reliability, and seniority between sexes all
condition the relationship, most if not all ignored inappropriately by
advocates of increasing the use of government to interfere in pay decisions in
trying to justify their views.
The left has deduced that
emphasizing this is not a winning strategy, and so has coined a new term to
describe the difference where it exists that tries to emphasize that there is no
organized effort to reduce women on pay questions to the equivalent of forced
to be barefoot and pregnant: “unintentional” discrimination. It appears to mean
that where differences occur, they are not meant by employers but somehow
magically appear through system irregularities and inefficiencies, and
therefore government must devise mechanisms by which to cancel these, et voilà, the evidence witnessed by the pay gap of the phenomenon
of “unintentional discrimination” disappears.
Which is ridiculous, not the
least reason being this whole concept itself is absurd on two levels. First, discrimination
permitted by government is not automatically some kind of violation of equality.
For example, it discriminates by allowing progressive income taxation: those
who make more pay a greater proportion of their income, only because they
earn more money and policy-makers feel their ability to pay is greater, nothing more.
Along the same lines, it taxes at a higher rate those who engage in certain
activities as opposed to others who win tax breaks, even if their incomes are
the same. “Discrimination” only occurs in a legal and/or harmful sense when
there is not some kind of justification (and the judiciary has set out a
sliding scale of when it is permitted, depending upon the importance of the
government objective involved) thought appropriate by society (constitutionally
or legally) to allow it not to be sanctioned. Discrimination is rampant in
society, but public policy strives to allow and endorse it only where it seems,
in the eyes of the public and the policy-makers they put in office directly and
indirectly, worth it to society as a whole and comports to our definition of
equality.
Second, by definition “discrimination”
only can be intentional. Why some
objects alike in all important ways except one are treated differently occurs
for some understood reason, even if it appears without rationality. For
example, I discriminate between chocolate and vanilla flavors with ice cream,
choosing the former and shunning the latter. And I intend that with full
cognizance, because I think chocolate tastes much better. It’s not some
unconsciously-derived preference out of the ethos where I have no idea why I
act to consume chocolate ice cream at the expense of vanilla. By definition, to
discriminate requires an intent that ends up in making a behavioral choice,
regardless of the rationality of the reason that serves as the cognitive anchor
by which it is made.
Thus properly understood, to
argue for a concept of “unintentional discrimination” really means
discrimination occurs because of conscious decisions made that shaped the
evolution of the system allegedly to cause an improper discrimination unrealized
by its purveyors. More specifically, the argument here is that the system that
ties compensation to the work done conditioned by the value it is afforded by
the market is somehow flawed, because of certain attitudes conducive to unjust
discrimination allowed to mold this system that we unwittingly continue to buy
into.
And this points back to a reprehensible
concept that first gained prominence in the 1970s called “comparable worth.” This
idea claims, taking a cue from the Marxian labor theory of value, that
particular jobs can be valued by the “work” expended, dependent upon and calculated
by the attributes necessary to perform it. For example, a social
worker should make more money than a plumber, because
the former must get a college degree and whose work deals with protecting
people, while the latter doesn’t need even a high school diploma and “just”
bangs around pipes, yet the median plumber income is around $8,000 more a year
more than that of a social worker.
Oh, and by the way, most plumbers
are men and most social workers are women. And, according to the ideology of
comparable worth, this is what explains the difference in incomes: the social
worker occupation deliberately has a lower median because of latent
discrimination against women that cancels out that these practitioners should
get higher pay because the job is “worth” more. To rectify, comparable worth
acolytes say that government should set pay scales according to this “intrinsic”
value, or at the very least facilitate efforts by “victims” to “rectify” the
imbalance through legal and other action.
That latter approach the “unintentional
discrimination” advocates have taken with several bills introduced into the
Legislature this session, and all deservedly have failed or look quite likely
to do so, precisely because the concept of comparable worth ignores that it is
the market, not some illusory “worth” of a job, that determines compensation.
The market rewards efforts in proportion to the value they return to society,
regardless of the presumed effort or mechanics involved in performing the job. Sorry,
but that means to society as a whole plumbers of whom most are male return more
value than social workers of whom most are female, assuming government does not
interfere in the pricing mechanism. It does to some degree through dizzying amounts of regulation, but not in a way
relevant to the issue at hand: that sexism pervades to the point it causes
deliberate underpricing of women’s contributions. Not only so as there is a whole
raft of laws out there that keep a lid on this practice but also that, as noted
above, simply no empirical evidence appropriately analyzed supports this
conjecture.
In short, proponents of the
concept of “unintentional discrimination” blame the market for this, as a
social construct biased to favor men over women. That’s uninformed and
inerudite, as seems largely recognized at some basic level – except for
advocates of HB
956 by state Rep. Julie Stokes.
This bill, which perhaps its supporters see as a device to take the wind out of
the sails of the unintentional discrimination crowd, makes illegal paying wages
to an employee of one sex at a different rate to that of another “for equal work
on jobs in which their performance requires equal skill, effort, and responsibility,
and which are performed under similar working conditions.” This wording mirrors
the federal Equal Pay Act, but then falls short because it does not include four
exceptions that follow, the last of which is most crucial: “except where such
payment is made pursuant to … a differential based on any other factor other
than sex.”
Note that a comparable worth
argument can be made without inclusion of the last phrase. It could be claimed,
for example, that the “performance” issue spans different jobs and social work
requires more “skill” and “effort” than that of plumbers. The wording is such
that it appears to apply to comparisons within a single employer, but there are
employers out there that may have a multitude of jobs that are predominantly
male or female and which have wage differentials. By adding the last clause,
this permits
introduction of other trenchant factors, such as the market, into
countering comparable worth explanations that would argue for wage
discrimination – and explains why comparable worth supporters have wanted to
amend out that phrase in the federal statute.
Granted, HB 956's authors and their
allies inside and outside of the legislature probably did not conceptualize the
use of this law across different jobs, but these tactics have been used by the comparable worth
movement to try to sneak its ideology into implementation of public policy.
Courts have been historically reluctant to expand coverage of the federal Fair
Labor and Standards Act in this direction, but that could change, especially
without the clause. And if one finds the concept noxious, why give it an
opening?
Additionally, if one enjoys legislative
parsimony, what is the necessity of a state law that largely duplicates federal
law and would come even closer to it if amended in a way that appears to adhere
more faithfully to its supporters’ ideas? The federal law that applies to
Louisiana employees is working as intended, so there’s no practical reason to
pursue a needless add-on in the form of HB 956, and a political rationale of
defusing the issue introduces too much risk in addressing something that,
frankly, has little salience in the overall political debate.
At the very least, the bill,
currently having passed the House, needs amending to fit its federal equivalent
29 U.S.C. 206(d).
Much better would be abandoning it entirely. If neither are done, presumably
many of those behind it one day may find a nasty jurisprudential surprise.
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