The Paycheck Fairness Act died in the Senate last week despite widespread support. Fifty-eight senators voted for it, which, as frustrated progressives surely know, is not enough to overcome a Republican filibuster. It passed the House of Representatives last year with a vote of 256 to 163, and a poll commissioned in July by the ACLU and a coalition supporting the bill found that 84 percent of registered voters supported a bill that would give "women more tools to get fair pay in the workplace."
But that's a phrasing few could disagree with. Republicans in the Senate said they voted against the bill because it would create frivolous lawsuits, without limits on damages, and force companies to report wage and employment data to the government. Neither of those is really true, but few things get conservative-leaning voters riled up more than lawsuits and government meddling. And while most Americans (and most of the world) support women entering the workplace, that support varies when we start to ask about who should get preference in troubled times, how the government should intervene, and what corrective action should be taken.
Real-world discrimination isn't as obvious as we'd like it to be: An employer will never say, "By the way, I'm paying all my female employees less." It's much more subtle and affects women from the start of their career, from the often internalized belief that women are naturally suited to traditionally low-paying careers like teaching rather than high-paying careers like finance, to the persistent belief that women are paid less because they're not solely devoted to climbing to the top of the career ladder.
A 2007 study by the American Association of University Women found that women were paid 5 percent less than men with equivalent jobs just one year out of school. Those differences compound: A woman who is paid less would have to get higher raises or better starting salaries at subsequent jobs to catch up with men. But raises and new salaries are anchored by previous earnings. It might be difficult for individual actors to see how their life paths are affected by society as a whole, and women themselves do not always recognize individual injustices for what they are -- systemic discrimination. That's the hard part about dealing with discrimination in America: We have a skewed idea of what it is, and many women, struggling or not, do not even know when they are a victim.
Conservative arguments against policies that would enforce equal pay build upon the worst of those misperceptions: the idea that the playing field is already equalized for women -- women just haven't taken advantage of it. The U.S. Chamber of Commerce's director of communications, Brad Peck, wrote a blog post on the organization's website taking issue with the idea that the gender-equality wars of today are as important as those of the past. "Suffragettes were fighting to give women equality of choice; those fighting for 'full equality' are trying to actually legislate away choice." The pay gap is the result of personal decisions, Peck said, so instead of supporting legislation, he argues for a personal-responsibility approach encouraging women to choose better careers and better life partners. That the work-life balance falls on women, he argued, is a cultural artifact, and correcting for it would require the state to treat people unequally. "Equality is a matter of ensuring equal access to opportunity, not ensuring identical outcomes in some areas depending on which opportunities you choose to take," he wrote.
Christina Hoff Sommers took to the op-ed pages of The New York Times in September to echo this point and to argue that employers aren't responsible for correcting for it: "It's not enough for an employer to guard against intentional discrimination; it also has to police potentially discriminatory assumptions behind market-driven wage disparities that have nothing to do with sexism." Both of these arguments flip the script: Correcting for actual discrimination would be unfair to employers, who are only responding to the market and individual merit. The hidden nature of the discrimination can make the solutions seem heavy-handed.
Of course, the "choices" women make are influenced by the same workplace discrimination they might have trouble recognizing. For example, in families in which men make more than women, it wouldn't make financial sense for men to leave their jobs to care for children. As Heather Boushey of the Center for American Progress wrote in Slate in September, if women were consciously trading pay for benefits like workplace flexibility and more time off, we would expect to see women with children in jobs with better benefits. Instead, they're actually less likely than men to have these jobs.
Still, a full third of Americans don't believe we need to make any more policy changes to ensure that women are treated equally, which just goes to show how much resonance arguments like these have. Despite the facts, the bill's failure hasn't caused an uproar beyond the progressive sphere. Last week, I spoke to Deborah Vagins, legislative counsel for the ACLU. She said she didn't believe the conservative arguments against the Paycheck Fairness Act had won any support, but, when she spoke to people about her work, they were often surprised to hear that the problem of the gender pay gap hadn't been solved. Most people thought solutions were already in place. What's particularly ironic is that the Paycheck Fairness Act was poised to make this hidden discrimination visible, and easier to fight.