Equal work

Summary

In "Equal Work," published in the *Maryland Law Review* in 2018, Stephanie Bornstein critically examines the persistent gender and racial pay gaps in the United States, arguing that current anti-discrimination laws are inadequate due to a narrow interpretation of "equal work." Bornstein highlights that while demographic factors like hours worked and time off contribute to pay disparities, a significant portion—between one-third and one-half—is attributable to occupational segregation and discrimination rooted in stereotypes about the value of work performed by women and racial minorities. The article posits that the "polluting" impact of status characteristics leads to devalued pay in occupations as women and racial minorities become dominant in those fields. The methodology employed in the paper is a legal analysis and critique of existing federal anti-discrimination statutes, primarily the Equal Pay Act (EPA) and Title VII, alongside an examination of historical legal movements and recent state-level legislative reforms. Bornstein dissects how existing federal law often requires plaintiffs to prove an employer's discriminatory intent or identify a nearly identical "comparator" of a different sex or race performing "equal work" who is paid more. This stringent requirement, the paper argues, makes it exceedingly difficult for employees to successfully challenge pay discrimination, especially when jobs may not be identical but are of comparable value. Bornstein contrasts these limitations with the historical movement for "comparable worth" legislation in the 1980s, which aimed to address wage disparities by focusing on work of equal value, and with recent, more expansive state laws (e.g., in California, Massachusetts, and Oregon) that mandate equal pay for "substantially similar" or "comparable work." The paper's findings underscore that proposals focused solely on narrowing employer defenses in unequal pay lawsuits, while potentially beneficial, do not address the fundamental issue of how "equal work" is defined at the outset of legal protection. Bornstein argues that leaving this definition untouched allows workforce segregation and gender and racial stereotyping to continue driving pay gaps. As an implication, the article advocates for reframing the concept of "equal work" within existing legal frameworks by drawing on broader definitions already used in some union, government, and private sector employment contexts. This broader framing is deemed essential for overcoming the impacts of occupational segregation and stereotyping on pay, thereby providing a more effective pathway to closing both gender and racial wage disparities.