The Ghost of the Glass Ceiling That Still Haunts Equal Pay

In June 1944, Representative Winifred Stanley (R: NY) introduced H. R. 5606 to the House of Representatives, with the stated purpose “so as to make it an unfair labor practice to discriminate against any employee, in the rate of compensation paid, on account of sex.” The bill never passed, and Stanley left office the following year. But the National Archives maintains a copy of the proposed legislation. The x-ed out “Mr.” before the blank where Stanley’s name is typed on the original bill is part of the format of the bill itself, a reminder about who has historically made laws in the United States and who has not. It would be almost 20 years before the Equal Pay Act (EPA), introduced by a man, was signed by John F. Kennedy on June 10, 1963. More than 50 years later, the gender pay gap remains stubbornly in place in science and technology as much as any other field, and part of the reason may have to do with the limitations of the EPA itself.

The Equal Pay Act of 1963 was part of the president’s “New Frontier” program of reforms, which included the Presidential Commission on the Status of Women. The introduction of the Equal Pay Act to Congress was the result of the work of Esther Peterson, a labor organizer and consumer advocate. In 1961, she was appointed head of the Women’s Bureau of the Department of Labor, and she established the Presidential Commission to systematically study and report on the status of American women. Peterson campaigned for the EPA, which was submitted to Congress in February of 1963 and signed into law that June.

The EPA established that no employer could pay workers less than other workers of the opposite sex who did the same job. It was a landmark piece of legislation, and one that helped to open the way for the Civil Rights Act of 1964 and the Title IX Education Amendment of 1972. But the courts have tended to interpret the law quite narrowly. There are numerous loopholes that employers could exploit by claiming certain kinds of work should not be considered equal, often citing innate biological differences between men and women such as the relative amount of weight workers could lift.

The act also included many codified exemptions that were part of the Fair Labor Standards Act (FLSA) of 1938, original law that the EPA amended, including one for executive, administrative, and professional work. Before amendments were made to the FLSA in 1972, the EPA did not apply to white collar work. This meant that women paid over a certain salary, whose work was primarily intellectual in nature, were not entitled to equal pay for equal work for almost the first decade of the EPA. Even if women were able to access higher paying professional work in white collar fields, including science and technology, they were not guaranteed equal pay throughout the 1960s and early 1970s.

Juliene James, writing in the New York University Law Review in 2004, has argued that the white collar exemption, even after it was removed in 1972, plays a spectral role in fraught place of the woman executive in American culture. Underlying objections to the initial passage of the EPA were deeply held cultural ideas that men’s role in society as breadwinner and avatar of society at large entitled them to better pay, even when they performed the same work as women. The presence of this exemption itself is evidence of the cultural impediments faced by women who aspired to such work at midcentury –– it seems clear that pay discrimination between genders was not perceived as an issue in professional white collar positions, which were still largely held by men. Added to New Deal-era distinctions between blue and white collar work, and their relative cultural value, James argues that these cultural factors have made the amended version of the EPA largely unenforceable for professionals and executives and that women are unlikely to win discrimination cases if they are exempt under the EPA.

Although scientists are not necessarily classified as executives, they are generally white collar professionals, and the limitations of the EPA may have continuing ramifications for women working in science today. As in other fields, neither the EPA nor subsequent legislation has closed the gender pay gap. The National Science Foundation reported that among men and women in employed in scientific and engineering professions there was still a $25,000 difference in median salary for 2017. The gap is even more stark for black women and women of color, with white men earning a median salary of $32,000 more than black women in all fields. Pay differential between men and women in the sciences is baked in from the beginning of their careers. For scientists entering the field that same year, men were projected to earn $18,000 more than women.

Many of the same cultural impediments to equal pay remain in place, including pay secrecy that leaves many women unaware that they are paid less than men in comparable positions. And, of course, the EPA doesn’t cover discrimination based on other facets and intersections of identity, including race, sexuality, and disability.

One curious feature of the EPA may mean that women in tech are more vulnerable to the lingering effects of the the EPA’s white collar exemption. In Silicon Valley, high salaries and stock options feed into the perception that such workers don’t even need the protections of the EPA, even though women in tech are routinely offered up to 45 percent less pay than men starting in the same positions. Here the legacy of the EPA’s exemptions and flaws is even more specific. Even after the amendment to the FLSA, which included professionals under the EPA in 1972, certain occupations remain exempt from gender discrimination provisions of the EPA, including “any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker…” This provision would have protected the burgeoning business of computing, a field founded by women, which was professionalizing and pushing women out in the 1960s, from having to comply with the strictures of the EPA.

Even if discrimination in these fields are prohibited by other, broader legislation, the text lingers in the law like the “Mr” in Winifred Stanley’s 1944 equal pay bill, the ghosts of the patriarchy by which we seem destined to always be haunted.