After Sarah Palin inserted the term "glass ceiling" into the Republican lexicon, Barack Obama increased the profile of his own references to gender equality. In Ohio on September 3, he pledged, "When I am president of the United States, we are going to pass equal pay for equal work. It's a simple principle, it's a basic principle."
But when it comes to equal pay for equal work, the devil is in the details, and simple isn't what it is. Details, of course, won't matter much in the campaign -- certainly not as much has how much lipstick a hockey mom wears or how much a beer heiress's dress cost. But the legalities do matter, and Obama's position is being used as part of the effort to paint him as an anti-capitalist radical (not that there's anything wrong with that), or just an old-fashioned liberal who would bury us all in bureaucracy.
Those accusations surfaced after Obama cosponsored Tom Harkin's "Fair Pay Act" (S.1087) in 2007. That bill was the subject of a Senate hearing at which I and others testified. Obama signed on as a cosponsor two weeks later, the 13th of 16 eventual cosponsors (not including Hillary Clinton, who has her own "Paycheck Fairness Act," which is less broad).
Despite the promises of the Equal Pay Act of 1963, which can be read literally as offering blanket protection, equal pay for equal work has been defined so narrowly as to be legally ineffective. As long as employers are not proven to be discriminating intentionally, they can pay women less than men if they are not doing the same jobs. That might be reasonable if men are doctors and women are nurses, but the problem is that men and women often work in jobs that are much more similar than that, but have different job titles. The feminist response to this was "comparable worth." Despite the absence of that term, that's the direction the Harkin bill was going, introducing an "equivalent jobs" standard that would broaden the type of comparisons allowed in unequal pay cases.
In my testimony I supported that idea. I said the bill "might permit legal scrutiny of segregation practices when those outcomes include unequal pay for men and women. This could have profound effects on both equal pay and segregation [by permitting a] broader comparison of work that is substantively equivalent but that is classified differently by employers. The pressure this brings to bear on employers might reduce the wage gap by calling into question practices that segregate men and women into different jobs - and that reward similar jobs differently."
But I'm not sure that's what Obama means by "equal pay for equal work" anymore. His campaign website reports that, in the name of "pay equity," he "believes the government needs to take steps to better enforce the Equal Pay Act, fight job discrimination, and improve child care options and family medical leave to give women equal footing in the workplace."
If you drill down to a report that describes his economic plan's effect on working women, there are four proposals under "Close the Pay Gap," which don't include the Fair Pay Act:
Obama would (1) sign the Fair Pay Restoration Act (S.1843) to reverse the Supreme Court's 2007 Ledbetter v. Goodyear decision setting the clock for filing suit at the moment of the first act of discrimination, rather than at the moment of the latest paycheck. (2) Increase funding for the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance, to uncertain effect. (3) Support paid leave and flexible work schedule policies. (4) Increase the minimum wage and index it to inflation, which would narrow the gender gap because more women than men work for low wages.
Nothing wrong with these positions as far as gender equality is concerned, but they are not the same as moving the law toward protecting the ideal of equal pay for equal work.
Follow Philip N. Cohen on Twitter: www.twitter.com/familyunequal