Although I rarely watch cable television, I happened to tune in to an episode of Mysteries at the Museum on the Travel Channel the other day. The segment I saw was about Mary Elizabeth “Lizzie” Murphy (1894–1964), the first female professional baseball player. The diminutive first baseman from Warren, Rhode Island, who was known professionally as Spike Murphy, billed herself as the “Queen of Baseball.” She was a very athletic teenager who played multiple sports, but fell in love with baseball. She played on both men’s and women’s teams.
What piqued my interest was the story within the story of how Murphy demanded that she be paid as the men. According to the New England Historical Society:
In those days, the teams would pass a hat through the crowd and collect up donations that the team would divide up among the players. After her first game, the story goes, the manager didn’t pay Lizzie Murphy a share. For the next weekend, he spread the word far and wide that he was bringing his girl ballplayer to Newport. The unusual presence of a girl playing with the boys would be quite a draw. Just before the game, though, Lizzie told him what professional athletes have always said: No pay, no play. Lizzie Murphy got her share, and a bonus for every game she appeared in.
I don’t know how many games or for how long Murphy actually played before she demanded to be paid. Obviously, she initially had no qualms about playing for free. Perhaps that was the only way she was allowed to play on a men’s team. But regardless of her motive, what came to mind while watching this segment was the slogan “equal pay for equal work” that we have heard for many years now.
It is my contention that “equal pay for equal work” is an empty slogan used for nefarious purposes that should take its place along side of other slogans similarly abused like “if you see something, say something;” “public safety;” “public health;” “national security;” “support the troops;” “wear a mask, save a life;” “war on terror;” “shop smart, stay six feet apart;” “unessential businesses;” “flatten the curve;” “social distancing;” “we are all in this together;” “just say no to drugs;” “crime doesn’t pay;” “reuse, reduce, recycle;” “carbon footprint;” “save the planet;” “green energy;” “gateway drug;” “climate change;” “it’s the law;” “democracy;” “diversity is strength;” “new and improved;” “eco-friendly;” and, of course, “from each according to his ability, to each according to his needs.”
Equal Pay Act
Before World War II, women accounted for less than 24 percent of the civilian workforce. The percentage of women in the workforce rose during World War II because so many men were drafted and sent overseas to fight the “good war.”
In 1942, the National War Labor Board issued General Order No. 16. It referred to the principles of “proportionate rates for proportionate work” and “equal pay for equal work” that was of “comparable quality and quantity.” After falling in the years after the war ended, the percentage of women in the workforce rose to about 37 percent by 1960. Attempts in Congress to pass “equal pay” bills in the 1950s failed to gain enough interest.
And then came President John F. Kennedy. He appointed Esther Peterson (1906–1997) as assistant secretary of labor and director of the United States Women’s Bureau and former First Lady Eleanor Roosevelt (1884–1962) as the chair of Kennedy’s Presidential Commission on the Status of Women. Both women were vocal supporters of legislation ensuring equal pay for women.
Many business groups — including the U.S. Chamber of Commerce and the National Retail Merchants Association — opposed such legislation because they believed that women were more expensive to employ, due to their higher rates of turnover and absenteeism from the workforce to bear and raise children, and because they believed this to be the purview of the states, not the federal government.
On June 10, 1963, Kennedy signed into law the Equal Pay Act. It amended the Fair Labor Standards Act of 1938 “to prohibit discrimination on account of sex in the payment of wages by employers engaged in commerce or in the production of goods for commerce.” The Equal Pay Act mandated that:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.
Kennedy said upon signing the bill into law:
I am delighted today to approve the Equal Pay Act of 1963, which prohibits arbitrary discrimination against women in the payment of wages. This Act represents many years of effort by labor, management, and several private organizations unassociated with labor or management, to call attention to the unconscionable practice of paying female employees less wages than male employees for the same job.
He went on to state: “While much remains to be done to achieve full equality of economic opportunity — for the average woman worker earns only 60 percent of the average wage for men — this legislation is a significant step forward. Our economy today depends on women in the labor force.”
The Civil Rights Act of 1964 that established the Equal Employment Opportunity Commission (EEOC) and prohibited discrimination in employment and public accommodations mandated that an individual must file a claim for
employment discrimination within 180 days of the date of the discrimination. Lilly Ledbetter filed such a claim in 1998, alleging that her employer, Goodyear Tire, discriminated against her because of her gender by paying her less than male employees. But not only did she not file the claim within the 180-day period, she filed the claim after she had retired. Ledbetter alleged that because some of her supervisors over the years had given her poor performance evaluations because of her sex that her pay had not increased as much as it would have.
Goodyear maintained that the evaluations had not discriminated against her. A federal district court ruled in her favor and awarded her $3 million in back pay and damages. However, the U.S. Court of Appeals for the Eleventh Circuit in Atlanta thought differently. As explained by Oyez, the repository of all things related to the Supreme Court:
The Circuit Court ruled that the fact that Ledbetter was getting a low salary during the 180 days did not justify the evaluation of Goodyear’s decisions over Ledbetter’s entire career. Instead, only those annual reviews that could have affected Ledbetter’s payment during the 180 days could be evaluated. The Circuit Court found no evidence of discrimination in those reviews, so it reversed the District Court and dismissed Ledbetter’s complaint.
Ledbetter appealed to the U.S. Supreme Court.
In the case of Ledbetter v. Goodyear Tire & Rubber Co. (2007), the question at issue, again, as explained by Oyez, was simply this: “Can a plaintiff bring a salary discrimination suit under Title VII of the Civil Rights Act of 1964 when the disparate pay is received during the 180-day statutory limitations period, but is the result of discriminatory pay decisions that occurred outside the limitations period?” By a vote of 5-4, the Court affirmed the judgment of the Eleventh Circuit, ruling that Ledbetter’s claim was time barred by Title VII’s limitation period. Justice Samuel Alito wrote the majority opinion, in which he explained:
In an effort to circumvent the need to prove discriminatory intent during the charging period, Ledbetter relies on the intent associated with other decisions made by other persons at other times.
Ledbetter’s attempt to take the intent associated with the prior pay decisions and shift it to the 1998 pay decision is unsound. It would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability in the absence of the requisite intent.
Ledbetter’s policy arguments for giving special treatment to pay claims find no support in the statute and are inconsistent with our precedents. We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented to the EEOC within the period prescribed by statute.
In her dissent, Justice Ruth Bader Ginsburg termed the majority’s ruling “a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose.” She suggested that “the Legislature may act to correct this Court’s parsimonious reading of Title VII.” And this is exactly what happened.
Fair Pay Act
As a direct result of the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Congress passed the Lilly Ledbetter Fair Pay Act of 2009 (S. 181, PL 111-2) “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.”
The bill was initially introduced in the 110th Congress in 2007, passed the House (H.R.2831), but
it was ultimately rejected by the Senate (S.1843). In the 2008 presidential election, candidate Barack Obama expressed support for the bill. The Democrats were able to get Ledbetter herself to appear in campaign ads for the Obama campaign and speak at the Democratic National Convention. The bill was reintroduced in the 111th Congress, which was totally controlled by the Democrats, and quickly passed both Houses of Congress. It was the first piece of legislation signed into law by President Obama. Ledbetter attended the bill signing. She has since become an activist for women’s equality.
The Fair Pay Act:
amends the Civil Rights Act of 1964 to declare that an unlawful employment practice occurs when: (1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to the decision or practice; or (3) an individual is affected by application of the decision or practice, including each time wages, benefits, or other compensation is paid. Allows liability to accrue, and allows an aggrieved person to obtain relief, including recovery of back pay, for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to practices that occurred outside the time for filing a charge. Applies the preceding provisions to claims of compensation discrimination under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.
Congress passed the Fair Pay Act because it believed that the Ledbetter case significantly impaired “statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades” and undermined those protections “by un-duly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.” The Fair Pay Act was actually made retroactive to May 28, 2007 — the day before the Supreme Court issued its Ledbetter ruling.
Are two jobs ever equal? Sometimes, they clearly are. For example, a job as a clerk in a particular convenience store can hardly be said to be different from other convenience store clerk jobs in the same store. And the same goes for pizza delivery drivers at the same store, cashiers at the same fast food establishment, servers at the same restaurant, and construction laborers on the same job site. These jobs generally do have equal pay for equal work.
But in many other jobs, there cannot be equal pay for equal work for the simple reason that the work is never equal. Two accountants or lawyers at the same firm may do the same kind of work, but they don’t do equal work. A famous actress a few years ago who refused to make another season of a popular series initially claimed that the reason was because her male co-star was getting paid more money than she was. (It later came out that she was upset about the nude scenes she was expected to do.) But if there were ever a case of unequal work, it is certainly on the set of a movie or television production, unless we are talking about a group of extras that form a crowd in the background.
This incident brings up the oft-repeated canard that women are paid less than men. When progressives and feminists say this, they usually imply that companies with men and women accountants, engineers, and database administrators deliberately pay the women less than the men. But of course, this isn’t the case at all.
According to the Bureau of Labor Statistics, the median earnings of all full-time wage-earning and salaried female workers is about 18 percent lower than male workers. This results from a variety of factors: type of occupation, experience, and especially time away from the workforce to raise children. Misogynistic businesses owners and managers have nothing to do with it. If it were really possible to pay women substantially less than men for doing equal work, then companies would be better off hiring all women and having a competitive advantage over other companies. Clearly, this is not happening.
But even if two jobs did have equal work, who is to say that they should have equal pay? As far as the law is concerned, the fact that one employee receives a different rate of pay for doing the “same job” as another should be irrelevant. A fair and just wage is the amount voluntarily agreed upon by an employer and an employee regardless of what any other employee makes for doing “equal work.” If the wage is too high, then the employer won’t employ; if the wage is too low, then the worker won’t work. The handwringing over pay equality would not exist in a free society.
There are a number of things that can be said about employees’ pay in a free society.
In a free society, there is no Equal Pay Act.
In a free society, there is no Fair Pay Act.
In a free society, there is no Bureau of Labor Statistics.
In a free society, no one is “worth” a certain rate of pay.
In a free society, the rate of one’s pay is strictly a matter between the employer and each individual employee.
In a free society, no one is entitled to a particular rate of pay no matter what his experience, qualifications, seniority, or education.
In a free society, no employee is entitled to pay equal to or greater than that of any other employee.
In a free society, employers could pay men more than women, the old more than the young, Catholics more than Protestants, Democrats more than Republicans, Europeans more than Asians, the thin more than the fat, the attractive more than the ugly, the married more than the divorced, and those with children more than those without.
In a free society, businesses don’t have to have annual performance reviews and pay increases for all, any, or every employee.
In a free society, employees freely decide to take a job on the basis of the wages and benefits offered to them.
In free society, the availability and rate of overtime pay are set entirely by agreement between employers and employees.
In a free society, government would not interfere in any way with any employer-employee agreement regarding pay and benefits.
The larger question here is that of the legitimacy of government prohibitions on discrimination in employment, whether it relates to pay or some other criterion. The reason why it should not be an issue that one employee does not receive “equal pay” for doing “equal work” as another employee is because, as far as the law is concerned, the government should neither seek to prevent nor punish acts of discrimination — regardless of whether it is based on stereotypes, false assumptions, or prejudices and regardless of whether it is unreasonable, illogical, or irrational. Discrimination, after all, is not aggression, force, coercion, or threat. It should therefore never be a crime. To outlaw discrimination is to outlaw freedom of thought. This doesn’t mean that discrimination practiced by employers is ever or always right, ethical, justified. It just means that it is not the proper role of the federal government to be concerned about it.
There are a number of things that can be said about employment discrimination in a free society.
In a free society, there is no EEOC.
In a free society, employers can refuse to hire any applicant for any reason.
In a free society, no one has any legal recourse if a business refuses to hire him.
In a free society, it is perfectly legal for employers to fire employees at any time and for any reason.
In a free society, affirmative action may be practiced, but not mandated.
In a free society, businesses are able to discriminate against potential employees for any reason and on any basis, just as potential employees can now discriminate against businesses for the same things.
In a free society, employers could discriminate in hiring, work assignments, and promotions based on race, age, national origin, ancestry, creed, disability, religion, religious piety, sex, sexual orientation, criminal record, citizenship, immigration status, health, drug use, tobacco use, alcohol use, marital status, pregnancy, familial status, gender identity, IQ, politics, or appearance (skin color or complexion; hair color, length, or style; facial hair; religious headwear; height; weight; dress; jewelry; scars; tattoos; piercings).
Freedom is always a better measure than equality.
This article was originally published in the July 2021 edition of Future of Freedom.