The Equal Pay Act of 1963 requires equal pay for equal work, yet by all accounts a significant wage gap based on gender exists in both the private and public sectors.57 By way of example, when the Equal Pay Act was enacted into law in the 1960s, women earned about 60 percent of the wages men earned on average; today, women earn about 80 percent of men’s wages on average.58 Why is this? Might some employers be exploiting legal loopholes in order to avoid complying with the law? 

In fact, a wide variety of factors might contribute to the overall gender wage gap. Historically, for example, women have worked in lower-paying fields than men. Also, in some industries women might work fewer hours on average than men. But an additional factor contributing to unequal pay might involve strategic behavior by business firms and government agencies, including such strategies as avoidance or even outright noncompliance. By way of example, soon after the enactment of the Equal Pay Act, some employers acted strategically to exploit loopholes in the law—for instance, by changing the job titles of women workers in order to pay them less than men.

Another strategic factor relevant to the gender gap is the informal employer policy of “pay secrecy.”59 In summary, some employers might discourage or even prohibit their employees from discussing their salaries with their fellow workers. Pay secrecy might then contribute to unequal pay because it’s easier for differentials in wages to remain in place when workers don’t know whether such discrepancies exist in the first place.

Let’s conclude this strategic section on a positive note. In the words of President John F. Kennedy, who signed the historic Equal Pay Act into law in 1963, the legal principle of equal pay for equal work “affirms our determination that when women enter the labor force they will find equality in their pay envelope.”60 Today, women under age 25 working full time earn over 93 percent of men’s salaries on average.

CRITICAL THINKING QUESTIONS

1. Should Congress enact a law affirmatively requiring private employers to publicly post or disclose information regarding the actual salaries paid to their employees?

2. Does Congress have the power under Article I of the U.S. Constitution to enact such a law?