Richard D. Tuschman, P.A. Employment Lawyers

What reasonable person would disagree with Patricia Arquette’s statement at the Academy Awards that “It’s our time to have wage equality once and for all and equal rights for women in the United States of America”? Clearly, there should be a federal law which requires that men and women be given equal pay for equal work.

Wait a second…. there is such a law. It’s called the Equal Pay Act, and it was passed in 1963. The EPA prohibits sex-based wage discrimination between men and women in the same company who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions.

So what is Patricia Arquette talking about? Well, she’s probably referring to the fact that on average, full-time working women earn just 77 cents for every dollar a man earns. Clearly, the Equal Pay Act is not working, so new federal legislation is necessary to close this wage gap, right?

Not so fast. The “77 cents” wage gap does not reflect a comparison of men and women doing the same work. It is simply the difference between women’s median earnings and men’s median earnings across all jobs. And as the Washington Post explained last year, it is the product of numerous factors, including: women and men choosing different careers (teaching as opposed to engineering, for example); men working more hours than women; and women having less experience than men, on average, in the same jobs, due to many women leaving the workforce for years to raise children.

This is not to say that wage-based discrimination does not exist. Even when accounting for all known factors, on average men still earn a bit more than women in the same jobs. In some cases, that pay differential could very well be the product of wage discrimination, i.e. a company paying a women less than a man for job that require substantially equal skill, effort and responsibility under similar working conditions.

But that’s already illegal under the EPA. So what action is Patricia Arquette calling for? More rigorous enforcement of the EPA? Or new legislation, such as the Paycheck Fairness Act, that would make it more difficult to defend against EPA claims?

That’s not clear. What is clear is that there should be an honest discussion about the wage gap and wage discrimination. The wage gap exists, but it is not the product of rampant wage discrimination. The precise extent to which wage discrimination exists is unknown, but it is worth noting that of the 1,024 EPA charges resolved by the Equal Employment Opportunity Commission last year, the EEOC found reasonable cause to believe discrimination existed in only 70 cases.