Last Thursday, Governor Scott Walker repealed Wisconsin’s Equal Pay Enforcement Act, which made it possible for victims of sex discrimination to further contest such discrimination in a Wisconsin circuit court–even if their cases were already on file with the federal Equal Employment Opportunity Commission, or in federal court, or with the Wisconsin Department of Workforce Development. Circuit courts could award compensatory and punitive damages; administrative-law judges could only offer remedies restricted to ‘back pay, attorney’s fees,’ and the like.
Walker’s repeal isn’t popular. And the editors of the National Review Online aren’t happy about the charges made against Walker, such as ‘turning back the clock on women’s rights in the workplace,’ ‘anti-woman,’ and ‘[undermining] not only women’s health care, but also their economic safety.’ The editors’ defense is simple: The law is superfluous and it produces worse outcomes; if there is sex discrimination, the laws on the books before the EPEA were adequate and moreover–tort reform anyone?–the EPEA makes ‘frivolous’ claims more likely.
The opening salvo of this defense is a curious one:
Regarding sex discrimination, the statistic most often bandied about is that women make 77 cents for every dollar that men make — but this number is useless, because it does not account for the fact that women enter different fields and make different employment decisions than men do. (For example, women are far more likely to leave the work force following the birth of a child.) Once these differences are taken into consideration, the wage gap shrinks substantially; some studies find that it disappears almost entirely. And of course, men and women differ in ways that are not easily measurable by researchers, and yet might still affect their earnings.
This is astonishingly glib, even for the NRO. This number is hardly ‘useless’ even if all the ‘accounting for the facts’ is carried out.
First, women do enter ‘different fields’ –they very often enter fields which pay less than the ones which men enter. For instance, if you attend a meeting in a boardroom of the the bright and gleaming corporate world, you will meet more women bringing you coffee and creamers than you will around the meeting table. Why do women enter such ‘different fields’? Could it because in ‘other fields’ paths for upward advancement are blocked by some legally addressable factor such as sex-based discrimination?
Second, why are women ‘far more likely to leave the work force following the birth of a child’? Could it because women, unlike men, are far more likely to have their career trajectories interrupted and mangled out of recognition by their temporary absence from the work force, an absence men don’t have to worry about? (Perhaps it is because child-care is still subject to a gendered understanding as the exclusive preserve of the mother and not supported in any meaningful way by our supposedly family-value conscious society and its workplaces.)
Third, it does not need an NRO editor to tell us that ‘men and women differ in ways that are not easily measurable by researchers, and yet might still affect their earnings.’ The latter, for instance, are subject to patriarchy and all its glib assumptions about the worth of a woman employee. Those that discriminate against women find comfort in the differences pointed to by the NRO editors; they are often able to brusquely justify their discrimination by pointing to non-quantifiable differences that they have somehow detected and made the basis of lower compensation for equal work.
If the NRO wants to defend the repeal of the EPEA, it’ll have to try some strategy other than the one that says ‘there ain’t no discrimination against women in the workplace.’ This is the modern political equivalent of flat-earthing.