Unequal pay for equal work is morally and legally unjust. Take an example: Aileen Rizo began working as a STEM consultant with the Fresno County Schools in the fall of 2009. Because Fresno’s school salary schedule bases new employee pay on prior income regardless of other qualifications, Rizo’s previous salary was used to calculate her new wage. Fresno pays new employees a five percent premium in order to attract and retain quality teachers.
When she was hired, Rizo had a bachelor’s degree in mathematics education, masters’ degrees in educational technology and mathematics education and close to 10 years experience teaching middle and high school math and designing math curricula. Rizo earned $50,630 per year, plus an annual master’s degree stipend in Arizona. Rizo’s adjusted salary, however, was lower than Fresno’s minimum starting salary, so her annual income was set at $62,133 with a $600 master’s degree stipend. Rizo testified that she was assured her salary “was comparable to [consultants] with as much experience as [she] had.”
It wasn’t. On July 31, 2012, Rizo was having lunch with two male colleagues, Eric Crantz and Mike Chamberlain, and learned that both earned almost $10,000 more than her. This was so notwithstanding the fact that all three performed the exact same job, and Rizo was the most educated and qualified of the trio. Crantz was paid $79,088, and Chamberlain was paid $73,832. On August 12, Rizo complained to a human resources administrator, but her complaint was promptly dismissed. Shortly thereafter, Rizo sued Fresno claiming that its discriminatory salary schedule violated the Equal Pay Act.
Rizo’s suit was unsuccessful. Equal Pay Act actions proceed in two steps. First, the plaintiff must prove that she and her male co-workers are receiving different wages for equal work. If the plaintiff satisfies this requirement, the burden shifts to the employer, who must show that the wage disparity is due to (1) a seniority system, (2) a merit system, (3) a system which measures earnings or quantity or quality of production or (4) a differential based on any other factor other than sex. Any justification must reasonably promote some business policy. Rizo was clearly receiving unequal pay for equal work. Fresno, however, claimed that its salary schedule (1) promoted objective wage decisions and incentivized quality teachers to come work for the school district. Since 1982, moreover, federal courts in California have held that employers may pay women less than men for equal work so long as the discrepancy arises from a salary schedule based on an employee’s prior income.
This isn’t right. Decisions permitting discriminatory salary schedules based on previous wages were originally erroneous, are no longer sound because of new conditions and do more harm than good. Prior salary alone cannot be a factor removed from sex because when an employer sets pay by considering only its employees’ prior salaries, it perpetuates existing pay disparities and thus undermines the Equal Pay Act’s purpose. The Equal Pay Act was intended to remedy a serious and endemic problem — the fact that the wage structure of many American industries has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same. Indeed, women’s earlier salaries are likely to be lower than men’s because of gender bias. On average, male primary and secondary school teachers earn $120 more than their female coworkers per month despite the fact that women hold 80 percent of such jobs. Furthermore, in California, women earn close to 86 cents for every dollar a man earns.
Fresno has two responses. First, the county tells us that it must pay men more because they will not accept less. Second, Fresno insists that its salary schedule attracts the best teachers. Both counters are unavailing. Male entitlement is not an excuse for perpetuating the discrimination Congress intended the Equal Pay Act to end. And Fresno’s fixation with prior earnings is not an ideal proxy for job experience. Under Fresno’s current system, a woman with a doctorate in curriculum development earning $50,000 annually would be paid less than a Silicon Valley tech worker with no education experience but a $80,000 prior salary. Fresno fails morally and legally.
Contact Habib Olapade at holapade ‘at’ stanford.edu