By Anne Driscoll
Sunday, September 9, 2001
The federal Equal Pay Act has been on the books for nearly 40 years, but it is little known and underutilized. Still, it has great potential to redress wage discrimination because it says comparable work and responsibility require equal pay.
BOSTON (WOMENSENEWS)--At one time, they were called "charwomen," a quaint title evocative of Dickensian scrub work and demeaning labor at the hearths and in the sculleries of the wealthy.
However, the women who wore this title were not swabbing floors in Victorian England. Rather, they were employed as custodians by the public schools serving 16,000 students in blue collar Lynn, Mass. And while their job title has changed over 50 years--"charwomen" to "cleaners" to "housekeepers" and now "house workers"--their duties have not.
They still clean the schools, washing down lunch tables, mopping floors, sponging down desks and scrubbing toilets. And in all those years, their job description did not change, but the pay scale tilted against them. The women came to realize their unique qualification as women in low-wage jobs: They were all paid less for the same tasks than their male co-workers were.
This fact put the Lynn Public Schools system at the center of a sex discrimination case, relatively easy to prove under the federal Equal Pay Act of 1963, according to the house workers' attorney Dan Rice, in Braintree, Mass.
Although the Equal Pay Act was passed almost 40 years ago, it is little known and underutilized. Advocates say the act has great potential to redress wage discrimination nationwide because it's relatively easy to prove unequal pay for comparable jobs that require substantially the same skills, effort and responsibility.
Among the states, only Maine has passed a comprehensive comparable pay statute that applies to both public and private sectors, and regulations went into effect in the spring. Other states have pay equity laws that apply only to public sector employees.
Rice says the Lynn Public Schools could do little to defend itself against the claim first filed in 1998 by 23 house workers, all of them women, with the Equal Employment Opportunity Commission. They asserted that they perform essentially the same work as "junior building custodians," mostly men, but they do it for $1.50 per hour less than their male counterparts, and many of them do it without the benefit of permanent status and benefits. When the case originated, the base salary was $11.58 per hour for the house cleaners and $13.08 for junior janitors.
Nationwide, women generally earn 75 cents for every dollar a man earns.
One year ago, just before the case was to go to trial, it was settled in an out-of-court agreement that awarded the plaintiffs $400,000 and gave them permanent job status.
The second half of the settlement was paid to them Aug. 23 at a house party organized by lead plaintiff, Sandy Ladd, and her attorney, Rice. Ladd opened her Lynn, Mass., Cape-style home to celebrate with her co-workers.
"We work just as hard as the men but we're not treated like them. All the women got on permanent status--it just made things right. And the fact that I was temporary was what made this so tough to fight."
She added that her male co-workers warned her to keep quiet or face losing her job.
Attorney Rice said it was relatively easy to prove the house workers' job was substantially equal to the junior building custodians' job in terms of skill, effort and responsibility, the standards of proof for the Equal Pay Act.
"You hear a lot about sexual harassment--you have Anita Hill and Clarence Thomas--but I think women out there are being paid less than men for jobs that might not have identical titles but which do require the same effort, skill and responsibility," Rice said. "And people don't realize that they're being paid in violation of the Equal Pay Act."
Rice argues that the burden of proof for a successful claim is easier than for other sex discrimination laws, such as Title VII or the Americans With Disabilities Act. Under the Equal Pay Act of 1963, it's not necessary for the plaintiff to prove "intent" to discriminate, he said.
Under the Equal Pay Act, the plaintiffs must only prove that two jobs are substantially equal in effort, skill and responsibility. "You don't have to compare apples and apples--you can compare different kinds of apples and still have a case," Rice said.
Enforcement of the Equal Pay Act initially was placed under the jurisdiction of the U.S. Department of Labor, but in 1979 enforcement transferred to the Equal Employment Opportunity Commission. In the year 2000, the commission received 1,270 Equal Pay Act claims, which represented about only one out of five of the wage-related cases it handled that year.
In May 2000, the Equal Employment Opportunity Commission formed an internal equal pay task force to enhance agency enforcement with field staff. In addition, the commission now posts specific information on its Web site about the Equal Pay Act.
Pam White, president of the Maryland State Bar Association, a lawyer who also represents clients suing under the Equal Pay Act at her Baltimore firm, Ober, Kaler, Grimes and Shriver, agrees that the law is underutilized. She said more public education groups, such as the trade associations and women's divisions of trade associations, could increase awareness and inform women of their rights.
"Until recent years, in my perception, enforcement of the wage laws by the Department of Labor and the state departments of labor has been understated, and thus the laws are under-appreciated," White said.
White said Equal Pay Act cases can be found in all sectors of the work force, ranging from the service industry to the most upper echelons of management. However, she added that it is sometimes harder to prove that professional women meet the standard of "substantially equal jobs" required by the Equal Pay Act; it can be easier to prove the case for charwomen and those doing manual labor, she said.
"Under the federal law, technically we don't have a comparable worth. If you've got a woman serving as vice president and there are eight other vice presidents and she's the lowest paid, there's no way to realistically compare her with the other vice presidents because duties and responsibilities are substantially different," said White.
Suzanne Granville, assistant director of the Working Women's Department of the AFL-CIO, says that the comparable wage law in Maine takes equal pay cases a step further. Maine is the first state to promulgate rules that would require comparable pay for male and female employees in the public and private sectors who work in comparable jobs.
The Maine law was passed in 1966, but the regulations went into effect only this spring. The AFL-CIO has spearheaded an effort this year to make businesses and workers aware of the law and to create rules to ensure its enforcement, Granville says.
"The significance of the Maine law is it's the most comprehensive law that covers the most people in the most jobs. It's really revolutionary because it covers private as well as public sector workers."
Women are still making 25 percent less than men, a problem that is attributable in part, Granville says, to the fact that jobs considered women's work are traditionally lower-paying jobs.
"To have equal pay for someone who is a secretary isn't helpful because there aren't many men who do that work. Those women are underpaid because they're doing women's work and a secretary makes less than a janitor. There's a historic precedent where until you address comparable worth, you're really not going to address the entire wage gap."
That is why the Maine law is considered so significant. It provides equal protection for two comparable jobs, as opposed to the same jobs, and it provides those protections whether the jobs are in the public or private sector.
Granville says that there is an advantage to having a federal comparable worth law, such as the Equal Pay Act, which would provide uniform protections across the country and put every state on the same footing.
"We're talking about a major problem where women are making 25 percent less than men. If you opened up your wallet every day and $10 of the $40 you had was taken out, that would be a major crime wave. We're talking about $200 billion nationally that working families are shorted because women don't receive equal pay--that's a huge amount of money."
In the meantime, the 23 house workers in Lynn are not so worried about the economy since they now have job security and have just received the balance of their share in the $400,000 settlement.
The case has made a tremendous difference in their lives. They may still be scrubbing toilets, but at the end of a day their paychecks are just as big as those of the male junior building custodians working next to them.
Wanda Kilroy, a mother of two children, ages 15 and 10, and a house worker for two years, said more women need to be made aware of the law and the "fact that there still is some discrimination against women. She added that the case made a major a contribution to her well-being. "The unknown of my job status, unknown future and not having any security was difficult," she said. "Getting permanent status took a lot of stress off me. The pay raise was nice to have too."
Anne Driscoll is a free-lance writer in Swampscott, Mass.
Equal Employment Opportunity Commission:
American Bar Association: