What if it weren’t the job of individual, underpaid women to report their employers for gender-based pay discrimination? What if the burden were instead on companies to proactively pay women equally, or face financial consequences?
Sen. Kamala Harris (D-CA) on Monday announced a plan to do just that, in what her campaign is calling “the most aggressive equal pay proposal in history.”
With her proposal, Harris shifts responsibility for closing the pay gap from the vulnerable to the culpable. Rather than place the burden on the underpaid employee to determine that she is being paid less than her male peers, Harris’ plan would preempt the problem by requiring companies with at least 100 employees to get an “equal pay certification” within three years of the law’s enactment and every two years after that.
Companies with 100 or more employees would need to demonstrate that male and female employees are compensated equally for equal work. In the event a pay gap exists for analogous jobs, the companies will, per Harris’ campaign, “be required to show the gap is based on merit, performance, or seniority — not gender.”
“For too long, we’ve put the burden entirely on workers to hold corporations accountable for pay discrimination through costly lawsuits that are increasingly difficult to prove,” Harris’ announcement read. “We’ve let corporations hide their wage gaps, but forced women to stand up in court just to get the pay they’ve earned.”
For companies with at least 500 employees, the three-year window for compliance shrinks to two. For companies with fewer than 100 employees, these rules would not apply, so small business can just keep on paying women less than men for the same jobs.
This approach avoids the inevitable risks to the individual worker who reports or sues her employer for equal wages: professional and personal retaliation, an upending of one’s life for a lawsuit that could drag on for ages, and the near-certainty of being branded “difficult” by the time it’s all said and done.
Harris’ policy proposal reflects a broader shift in how society thinks about sexism and how to best combat it. The early 2000s saw the rise of a kind of rah-rah, you-go-#girlboss feminism, rooted in “empowering” women to take on a world that was at best indifferent and often actively hostile to their ambitions.
Much of the prevailing guidance on how to address misogyny was to police and correct the supposedly self-damaging behavior of women: say “sorry” less, ask for that raise, lean in more! It’s a variation on an insidious, persistent theme that runs through everything from relationship advice to rape prevention: Men can’t or won’t change, so women must, or nothing will.
But the evidence against valiant acts of wonder-womaning being enough to solve these massive problems is piling up. It is getting harder and harder to deny that the problem is not any individual woman’s failings but a system designed so she will fail, then blame herself for the failure.
Data on the pay gap shows it is nothing if not persistent: The influx of women into the workforce has done little to close it. Getting married widens the gap to a gulf (for women, that is — married men earn more than their single counterparts); having children makes that gulf into a canyon (again, for women; men earn more for every kid they have). Reliable research proves the wage gap is not the result of women self-sorting into lower-paying jobs; in fact, the majority of the pay gap between men and women “comes from differences within occupations, not between them — and widens in the highest-paying ones like business, law and medicine,” as the Times reported in 2014.
In Harris’ plan, equal pay certification would be determined by the Equal Employment Opportunity Commission (EEOC), which would decide whether or not a given company pays women equally. Companies would then be obligated to disclose their certification (or lack thereof) on their website and inform any prospective employees as well. A company that fails the EEOC certification process would be fined 1% of its average daily profits from the prior fiscal year for every 1% pay gap in their ranks.
As HuffPost reports, “Harris’ campaign estimated the scheme would, at least initially, generate about $180 billion over 10 years ― funds she supports investing to help finance a national paid family and medical leave program. The U.S. has no such national programs, though many firms have their own.”