By Caroline Dobuzinskis and Ariane Hegewisch

Yesterday, the U.S. Supreme Court ruled a class action lawsuit brought against Walmart by six plaintiffs representing 1.5 million employees did not have sufficient evidence to prove a corporate-wide policy in discrimination—and could not qualify as a class action suit for monetary damages.

This is potentially a major blow to the reduction of discrimination by large employers—and an obstacle in making pay equality a reality in the United States. IWPR research has shown that, through class action suits, consent decree litigations imposed on employers requiring changes in policy or behavior can help to eliminate discrimination in the workplace. Transparency and monitoring can ensure that these changes take hold in the long term, and create a shift in corporate policy away from discriminatory practices in corporate hiring and promotions.

Still a Long Way to Go for Pay Equality

The gender wage gap is real and will be around for some time. Women’s median annual earnings are only 77 percent of men’s and, according to an IWPR estimate, pay equity will not be reached until 2056.

Discrimination has been shown to be one of the factors that create the gender wage gap. Even after estimates control for age, experience, education, occupation, industry and hours of work, 41 percent of the wage gap remains.

In principle, the groundwork for eliminating pay inequality was laid almost five decades ago when President Joseph F. Kennedy signed the Equal Pay Act (EPA) in 1963 to prevent pay discrimination against women. In 1964, Title VII of the Civil Rights Act made it illegal to discriminate in terms of pay or employment conditions, on the basis of race, color, religion, sex, or national origin. After these historic legislative advances, progress in closing the gender wage gap has slowed in recent decades.

Experts Weigh in on Pay Fairness

A recent briefing on Capitol Hill attracted a standing-room-only crowd interested in hearing how to make pay equality the new reality—both in principle and in practice. The June 9 briefing was organized jointly by IWPR and the National Women’s Law Center, and was sponsored by longstanding pay equity champions Senator Barbara Mikulski and Congresswoman Rosa DeLauro who recently reintroduced the Paycheck Fairness Act to both Houses of Congress.

Pay Secrecy Often Goes Hand in Hand with Pay Discrimination

At the briefing, Ariane Hegewisch, Study Director at IWPR, argued that protection from pay discrimination exists in principle. But close to half of all workers and over 60 percent of private sector workers cannot discuss their pay—making pay equality difficult to ensure in practice.  Some workers can face disciplinary action, and even immediate dismissal, if they are caught discussing wages.

Fatima Goss Graves, Vice President for Education and Employment at the National Women’s Law Center, noted that the issue of pay secrecy did not receive much media attention in reporting on Walmart v. Dukes despite plaintiffs in the case expressing fear at employer retaliation if they discussed pay.

While pay secrecy policies and practices do not prove the presence of wage discrimination, IWPR’s recent research on sex and race discrimination settlements suggests that pay secrecy and wage discrimination often go hand in hand.

Carol Golubock, Director of Policy at SEIU- Service Employees International Union, added that in principle workers have the right to discuss their pay under the National Labor Relations Act of 1935 (NLRA). Because of weak enforcement and the absence of punitive damages or injunctive relief, however, many employers continue to get away with having explicit pay secrecy clauses.

Paycheck Fairness Act Prevents Pay Secrecy

All experts on the panel at the briefing emphasized the positive changes that could be brought through passage of the Paycheck Fairness Act—focusing in particular on its capacity to prohibit employer retaliation against workers who discuss salaries and wages. The impact of reducing pay secrecy could reach also hourly workers, helping them to ensure they are receiving their due through minimum wage and overtime laws.

The Paycheck Fairness Act would also spur growth in the economy and assist working families. Goss Graves pointed to the wider benefits that equal pay can have on families, especially single mothers, and communities. As overall tax revenues increase, more money is put in the economy, and more money available to keep children out of poverty and address their needs.

Adding to the discussion on pay equality, one panelist presented another facet of the unequal pay conundrum that lies outside of legislation. Lilla Hunter-Taylor, CEO of an employee recruitment company called The Staff Hunter, said she frequently encounters clients seeking women candidates because women do not negotiate as aggressively as men.

Caroline Dobuzinskis is the Communications Manager at the Institute for Women’s Policy Research (IWPR). Ariane Hegewisch is a Study Director with IWPR.

To view more of IWPR’s research, visit IWPR.org