While there have been improvements in the gender pay gap, women still generally lag behind men. In the United States, the median income for women workers is 81-83% of that of men. This is an improvement from the 75% figure of 1989 but is still a point of concern. Interestingly, there has been an inversion of the pay gap for CEOs. Way back in 2012 women CEOs made about 72% of what their male colleagues were paid. Now, female CEOs in the S&P 500 have a higher median income than their male counterparts.
While there have been failed efforts to get an equal rights amendment ratified, the Lily Ledbetter Fair Pay Act of 2009 provided women with some tools to address discrimination.
On the face of it, women are morally entitled to the same pay as men, provided the relevant factors are the same. This is based on the principle of relevant difference: a difference in treatment is only morally justified when it is grounded by a relevant difference. The challenge is defining what differences are relevant. As an easy example, if Mike is paid more than Sally because Mike is a full professor and Sally is an assistant professor, then that difference would be relevant, and the pay disparity could be thus justified. However, if Mike and Sally were both full professors and Sally was paid less just because she is a woman, then that would not be a relevant difference and hence would seem to be unfair. But this view can be countered.
One option is to argue that a person’s biological sex is a relevant difference such that even if all other factors were identical, a woman could be justly paid less solely because she is a woman. This seems difficult to justify as it is like saying that if a man and a woman raced a 5K and they ran identical times (crossing the line at the same time), then the woman would lose just because she is a woman, even though everything else was the same. This is absurd. While a sexist could claim that even in such cases the woman would lose and should be paid less, the “clever” sexist will argue that women have properties as women that are relevant to being paid less.
The usual claim is that women will generally underperform relative to men because of the qualities women have (or lack). As an illustration, someone might use the example that on average men are faster runners than women. For example, the world record for men in the marathon is 1:59:30 and for women 2:09:56 (my best is 2:45). This is not due to any injustice but to the physical differences between the sexes. The sexist would then argue that this disparity in ability extends into the workplace and hence women, in general, merit less pay then men.
This line of reasoning has some appeal. If the work performance of women is inferior to that of men, then they would justly be paid less and this would appear in the statistics, just as the difference in performance shows up in marathon results. If it is countered that some women are superior to some men, the obvious reply is that this is still consistent with the general disparity. After all, the women’s world record in the marathon crushes mine by 36 minutes, but it is still about 10 minutes behind the men’s record. And the average women’s time in the marathon is slower than that of the men. Likewise, while Sally might be superior to Sam at work, male workers in general might be superior to female workers, thus justifying the disparity.
This line of reasoning can be countered by showing that workplace performance of women is at least comparable to that of men and thus the pay disparity is unjust. If general gender pay disparity is justified by appealing to relevant differences, then individual women who perform at work as well or better than men in a job should be paid as well or more.
Based on my own experiences, I believe men and women have comparable job performances, and that a person’s biological sex does not warrant pay disparities. But this is, at best, a hasty generalization since my sample is small. But this is an empirical question and can be addressed by an adequate investigation. If an objective and adequate assessment showed that one sex is inferior to another in relevant ways, then the general disparity would be warranted.
Another approach, argued for by Representative Todd Akin (the same person who claimed that the female reproductive system has defense mechanisms against being impregnated by legitimate rape) is that employers should have the right to pay women less than men. Akin said, “I believe in free enterprise. I don’t think the government should be telling people what you pay and what you don’t pay. I think it’s about freedom. If somebody wants to hire somebody and they agree on a salary, that’s fine, however it wants to work. So, the government sticking its nose into all kinds of things has gotten us into huge trouble.” Distilled, this is the view that employers should be able to underpay women because freedom.
On the one hand, this has some appeal. After all, for the state to impose salary rules on employers would limit their freedom. Some argue that in a free-market people can always decide not to accept a salary and go elsewhere to earn a more desirable salary. As such, if an employer wants to pay women less than men, then women can go work for someone who pays women better. A woman could even start her own business and pay women as well as (or better than) men. Naturally, the same freedom would seem to apply broadly so that an employer should not be forced to pay a minimum wage or provide any benefits that could be considered part of the compensation. If workers also have the freedom to secure better pay, then it would be reasonable for employers to have the freedom to set their pay.
But there are some serious points of concern with the freedom argument First, employees usually negotiate from a position of weakness relative to the employer. So, the market is not free but operating in favor of the employer. This is why employees should be able to form unions and have legal protections to help ensure the wage market is free and that one side does not have an unjust advantage. Part of ensuring a free market could involve minimum wage and equal pay for equal work laws. History shows what happens when employers can set their pay with complete freedom.
Second, the idea that women workers can always go elsewhere and receive better pay or start their own business is unrealistic. After all, if most employers pay women less than men, women will not have many options. Also, the odds of a new business succeeding are low so this option is hardly one that most women can use.
Third, there is also the matter of ethics. While some might hold that employers should have the freedom (or right) to pay workers as they please without the interference of the state, this same logic would grant individuals the freedom to steal from employers (or anyone). After all, if an employer should have the freedom to pay workers less than the value of their work, then they are stealing from the workers. If this theft is morally acceptable, then so too would be theft from the employers. After all, if the employer has the freedom to engage in unjust acts, then the same freedom could be claimed by everyone, thus allowing people the freedom to rob employers.
It might be countered that the workers agree to the pay and hence are not being robbed. This would be true if the workers freely entered into the agreement without coercion. However, if the workers are coerced into these agreements (as can occur when there is a disparity in power) then this is theft. After all, if a person “agrees” to hand me some of his property because he knows I have a gun, then I am still stealing. Likewise, if people must work to survive within a coercive economic system, then they can be robbed even when they “agree” to accept what they are offered. Thus, the freedom argument against fair pay lacks merit, unless one believes in freedom to steal. Which, if we look at our economic system, is a belief held by the ruling class—at least the freedom for them to steal.
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