The quick trip that pending pay legislation, particularly the Paycheck Fairness Act, made to the floor of the House this week has renewed discussion of the concept of comparable worth. Comparable worth provisions were among the most controversial aspects of the Paycheck Fairness Act in its previous rendition(s); they appear to have been (mostly? maybe entirely?) removed from the current bill, which is expected to be passed before the end of this week. Of course, we have yet to see what exact form the bill will take when it comes up in the Senate.
By reader request, the purpose of this post is to provide some background on comparable worth.
From my perspective (which is a practical, not a legal one), comparable worth reflects one of two different viewpoints on how to approach and resolve gender-based pay disparities:
First, there is the idea of pay equality, which I would define as the notion that men and women must be paid the same if they are found to be performing the same job in the same organization.
Secondly, there is the idea of pay equity or comparable worth, which I would define as the notion that men and women must be paid the same if they are found to be performing jobs of comparable value in the same organization. Comparable value is typically determined by a factor-based job evaluation process which disregards or dilutes the consideration of a job's value in the marketplace for talent. (Go here and here for more on factor-based job evaluation.)
See the difference?
We here in Minnesota have had opportunity for an early look at the potential workings and consequences of a federal comparable worth law, because we already have such a law in place at the state level. Our State Employee Pay Equity Act, however, applies only to public sector employees, although efforts have been underway for years to extend its provisions out into the private sector. Some time back, when the whole comparable worth argument was getting kicked up in anticipation of the earlier PFA, I posted an interview here with Dr. Ellen Benjamin, a compensation consultant and colleague of mine, who has virtually unparalleled experience with compliance under our pay equity law. Click back to her interview and see what she has to say about the probable impact of extending such a law nationally into the private sector.
With respect to the current legislation, following is the portion of the earlier HR 1338 Paycheck Fairness Act that I believe to contain the comparable worth provisions:
SEC. 7. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION PROGRAM.
(1) IN GENERAL.—The Secretary of Labor shall develop guidelines to enable employers to evaluate job categories based on objective criteria such as educational requirements, skill requirements, independence, working conditions, and responsibility, including decisionmaking responsibility and de facto supervisory responsibility.
(2) USE.—The guidelines developed under paragraph (1) shall be designed to enable employers voluntarily to compare wages paid for different jobs to determine if the pay scales involved adequately and fairly reflect the educational requirements, skill requirements, independence, working conditions, and responsibility for each such job with the goal of eliminating unfair pay disparities between occupations traditionally dominated by men or women.
(3) PUBLICATION.—The guidelines shall be developed under paragraph (1) and published in the
Federal Register not later than 180 days after the date of enactment of this Act.
And yes, I take note of the word "voluntarily" with respect to the use of the DOL job evaluation guidelines, but I wonder how voluntary they would truly be, for example, for private firms with (or seeking) government contracts or whose pay practices were audited or challenged in any way. At any rate, these provisions appear to be absent from the version of the bill being considered by the House this week.
However. There remains in the current bill, however, a section titled "REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA COLLECTION. It is noted in this section that the "employees of the Office (of Federal Contract Compliance Programs) shall use the full range of investigatory tools at the Office’s disposal, including pay grade methodology".
The section goes on later to state that the Office "for purposes of its investigative, compliance and enforcement activities, shall define ‘similarly situated employees’ in a way that is consistent with and not more stringent than the definition provided in item 1 of subsection A of section 10–III of the Equal Employment Opportunity Commission Compliance Manual (2000)". In defining "similarly situated employees", this Compliance Manual states that the similarity of jobs is determined "by ascertaining whether the jobs generally involve similar tasks, require similar skill, effort, and responsibility, working conditions, and are similarly complex or difficult."
Sure still sounds a lot like comparable worth to me. Readers with law degrees and/or more experience in deconstructing legal language, please feel free to weigh in. I'd love some assistance in better understanding the implications of this section.
My sources tell me that Senator Clinton may be introducing her version of a paycheck fairness bill to the Senate soon. It will be important to watch the degree to which comparable worth language features in that legislation.
To be fair and in conclusion, the Paycheck Fairness Act does call for a number of efforts - beyond potentially messing with the structure and design of private sector pay practices and lifting the caps on penalties - in the pursuit of gender pay equity. These efforts include the establishment of a grant program for negotiation skills training for girls and women and the establishment of a national award for pay equity in the workplace. As a woman who genuinely does want to see gender pay disparities eliminated, however, I think those drafting this legislation have completely overlooked what seems to me an obvious and critical intervention in this regard. More on that in an upcoming post.