Equal pay for women elusive 55 years after landmark law

Fifty-five years have passed since the Equal Pay Act became law, but the federal government may still be paying women billions less than men for the same work.

The Equal Pay Act, which former President Kennedy signed into law on June 10, 1963, requires men and women within a given organization to be paid equally for work that is materially the same.

The federal government does not regularly assess and analyze how female employees are paid relative to men or why, but two studies in the past decade indicate that women may be getting short shrift.

{mosads}The reason is not just because they are not rising through the ranks as frequently as men, but also because they are likely getting paid less than men doing the same job.

In 2014, under a directive from former President Obama, the Office of Personnel Management (OPM) conducted an audit and found that the average gender pay gap in the federal workforce in 2012 ranged from 11 to 13 percent. In other words, women earned 87 cents to 89 cents to the dollar compared to men, better than the most recent national figure of 80.5 cents. 

When OPM analyzed the data, it was able to explain a large portion of the difference.

For example, only 36 percent of federal supervisors or managers were women, and managers get paid more than non-managers. This explains part of the difference in average pay between men and women.

Most of the government’s action following the Obama directive focused on providing work flexibility, improving the government’s family leave policy and bettering the recruitment and promotion of women.

But little has been done to address the question of unequal pay for equal work; Even among federal supervisors, women made 4.4 percent less than men.

In fact, after factoring in issues such as geography, occupation, supervisory level and union affiliation, the OPM could not account for 3.6 to 3.9 percent of the gap between male and female salaries across the federal government. 

Experts say this portion of a wage gap may be the result of implicit bias, discrimination or cultural issues. It is also a measure of how much less women are getting paid for the same jobs. 

Using OPM data, The Hill estimates that gap would amount to the 886,358 female federal employees in 2012 being paid an average of $2,869 less than men for the same work, a collective $2.5 billion.

An earlier 2009 study from the Government Accountability Office (GAO) found more alarming results. Over several decades, even as women rose in the ranks and brought down the overall wage gap, the government could not explain 7 percent of the wage gap.

The unexplained margin adds up to a loss of $4,942 per woman, according to The Hill’s analysis of OPM data for federal workers in 2007, the last year in the study. The federal government would have had to pay the 822,704 female federal employees more than $4 billion to fill that year’s gap alone.

Both GAO and OPM note that there may be legitimate factors other than discrimination or bias that account for some of the unexplained gaps, such as poor measurement, prior work experience, college major, outside obligation and work performance. Performance, in particular, is a legitimate driver of pay, though it too can be applied in a discriminatory way. 

Neither of the studies collected or analyzed data on those factors.

Because of the remaining ambiguity, neither study definitively concluded that women were being paid less for equal work, a conclusion that may have had legal consequences under the Equal Pay Act.

“We don’t say any more about it when there’s no empirical data to help sort that out,” says Cindy Brown Barnes, a director in GAO’s education workforce and income security team.

The OPM report similarly concluded that, despite the possibility that discrimination was playing a role in the unexplained portion of the wage gap, “adherence to the principle of equal pay for equal work is evident based on the agency data collected and reviewed for this study.”

But outside experts say those conclusions may be brushing unfair pay under the rug.

Lara C. de Leon, who chairs the Pay Equity Practice Group at the law firm Ogletree Deakins, says a private sector company facing a gender wage discrimination case would not be able to get away with even a 3.6 percent unexplained gender wage gap.

“When a private employer gets a lawsuit, we have to explain the entire differential,” she says.

In the United Kingdom, where large companies are required to conduct pay audits and fill unexplained differences in the gender gap, “any differences of between 3 percent and 5 percent or more should warrant further investigation,” according to the U.K. Government Equalities Office’s guide. 

By that measure, both the OPM and GAO reports would raise red flags.

The federal government also has no requirements to regularly perform rigorous audits checking whether women are getting paid less for equal work, something that equality auditors say is key.

Tech giant Salesforce started conducting annual internal pay equality audits in 2016, and found that the problem crept back in subsequent checks. 

“We’re going to have to do this continuously. This is a constant cadence,” Salesforce CEO and Chairman Marc Benioff told “60 Minutes” in a recent interview, though he noted that the problem was shrinking each year.

Since the 2014 report, OPM has not released an in-depth follow-up, though in 2015 it encouraged individual agencies to conduct their own reviews. 

Similarly, no member of Congress has commissioned another GAO study on the matter since the 2009 report. 

GAO can choose to embark on its own studies without a congressional mandate, but has not elected to repeat the exercise with updated data.