The Market Myth and Pay Disparity in Legal Academia
52 Idaho Law Review 867 (2016).
22 Pages Posted: 8 Oct 2016
Date Written: October 5, 2016
The wage gap in academia — even when controlling for rank — has been clearly documented. This article focuses on the affirmative defenses to the Equal Pay Act that play a central role in perpetuating this pay gap in legal academia. These include exceptions for prior salary, competing offers, and negotiation. These affirmative defenses fall under the rubric of “market excuses” and their existence eviscerates the very law that was meant to make the practice of paying men and women differently illegal. The article describes case law that interprets these affirmative defenses and applies the analysis in those cases to two recent, high-profile cases in the legal academic workplace. It will describe the current state of play in legal academia in terms of compensation decisions, the disparate impact that these practices have on women faculty and possible solutions, including the Paycheck Fairness Act.
Keywords: equal pay act, legal academia, wage gap, market defense, factor other than sex, crisis in legal education, law school, law professor, paycheck fairness
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