The Statutory Public Interest in Closing the Pay Gap

This Essay explores the role that the statutory public interest should play in the enforcement of rights under the Equal Pay Act of 1963 (EPA). Current data shows that, even fifty-five years after the enactment of federal law outlawing sex based pay discrimination, the gender pay gap inflicts huge costs on women, their families, and the U.S. economy, echoing the public concerns that led to the statute’s original passage. That Fair Labor Standards Act of 1938 (FLSA) and EPA rights cannot be waived by an employee calls into question two common employer pay-setting practices often excused under federal law: setting pay by individual negotiation and basing pay on an employee’s prior salary. As this Essay argues, both practices unfairly benefit employers due to unequal information and bargaining power; as such, allowing them to excuse unequal pay constitutes a forced waiver of an employee’s EPA rights. Part I of this Essay reviews existing law under Title VII of the Civil Rights Act of 1964 and the EPA before turning to examine the statutory public interests and related limitations on waiver of FLSA and EPA rights. Part II applies these considerations to the modern workplace, first identifying the public interests in closing today’s gender pay gap, then considering employer pay-setting practices through the lens of the nonwaivability of EPA rights. Importantly, this Essay in no way seeks to advocate for a protectionist approach or to imply that women need special treatment in compensation practices. Instead it seeks to expose a significant proportion of the gender pay gap for what it actually is: the result of unfair competition and unfair labor practices that injure the public interest and the U.S. economy. Just as a law that requires a minimum wage and an overtime premium for all workers is not “protection” for a special group but, instead, a minimum labor standard that helps the entire U.S. economy, so too is a law that requires for equal pay regardless of sex. Underpaying female workers—who now compose nearly half of the paid workforce and provide 40 to 100% of household income in half of all families with children—hurts the entire U.S. economy. Both the FLSA and the EPA were passed with the public concern in mind; it is time to revisit this intention