Shattering the Equal Pay Act's Glass Ceiling

Abstract

This Article provides the first empirical and rhetorical analysis of all reported Equal Pay Act (EPA) federal appellate cases since the Act’s passage. This analysis shows that as women climb the occupational ladder, the manner in which many federal courts interpret the EPA imposes a wage glass ceiling, shutting out women in non-standardized jobs from its protection. This barrier is particularly troubling in light of data that shows that the gender wage gap increases for women as they achieve higher levels of professional status.

The Article begins by examining data regarding the greater pay gap for women in upper-level jobs. To evaluate the EPA’s effectiveness to address pay discrimination for these workers, the Article provides an overview of empirical trends in EPA appellate case law. The analysis shows that courts increasingly dismiss EPA cases at the summary judgment stage, despite the fact-intensive nature of the claims, and that women in non-standardized professional and managerial jobs are less likely to prevail. The Article examines the two competing notions of “equal work” present in EPA case law and proposes a more effective prima facie standard that better accommodates women in non-traditional jobs. The Article then identifies narratives underlying EPA cases that may allow pay discrimination to flourish for women in upper-level jobs, including the expansion of certain defenses into exceptions that swallow the equal pay rule, the presumption of incompetence and lower value for women (even at the executive level), and secret pay processes that facilitate pay disparities. The Article analyzes these narratives in light of other psychological and business research and proposes new remedial models to shatter the EPA’s glass ceiling and ensure the promise of equal pay.

Keywords: Equal Pay Act, wages, women, discrimination, executive compensation