Disabling the Gender Pay Gap: Lessons from the Social Model of Disability
Denver Law Journal, 2014, Forthcoming
32 Pages Posted: 14 Apr 2014 Last revised: 10 Feb 2015
Date Written: February 9, 2015
As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the "women don’t ask" and "lean in" storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.
The disability civil rights movement faced a similar challenge, however, and their response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized "social model," which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide.
Keywords: Title VII, sex discrimination, social model, civil rights, disparate impact, employment law, disability law, pay gap, pay inequality, pay equity, gender
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