Wednesday, June 25, 2014

The Long Struggle for Wage Equality for Women and Republican Road Blocks

by Nomad

Wage equality for women has been a long and difficult road, dating the Roosevelt era and before. Down through the years, step by step, progress against pay discrimination has plodded along, despite the numerous obstacles.

However, that struggle came to an abrupt halt last April when Republican Senators decided to shut down legislation to curb pay discrimination based on gender.
But the question is: will they pay a price in November?

In April of this year, Senate Republicans voted unanimously to block debate on proposed legislation aimed at closing the pay inequality between men and women. The GOP shut down a motion to proceed on the Paycheck Fairness Act with 53 votes for, and 44 against. That count fell short of the 60 needed to defeat a filibuster. 
As a result, the legislation was pronounced DOA and it marked the third time this particular proposal has failed. 

For Republicans, it was risky - some would say suicidal- thing  to do with the midterms coming up. However, in a marvelous bit of spin, Kentucky Senator and Senate Minority Leader Mitch McConnell said the legislation was.. 
"just another Democratic idea that threatens to hurt the very people that it claims to help. ... We've already seen what five and a half years of Washington Democratic control has meant. More poverty and lower wages for women."
McConnell is facing Democratic opponent Alison Lundergan Grimes in the mid-terms. A new Republican poll has found that Grimes is leading McConnell by three points. The gap is even larger among women voters in his state. And that's no wonder: on a variety of women's issues, McConnell's voting record is hard to defend.

Exactly how tightening prohibitions against sex discrimination in the payment of wages, adds up to poverty and lower wages for women, is part of the magical thinking of the conservative GOP. Fortunately well-financed (think corporate funding) organizations are quick to plug up any logical leaks in the sinking ship.

For example, the American Enterprise Institute (AEI), an influential conservative think tank, claimed in an op-ed piece for The New York Times that:
"discrimination plays little role in pay disparities between men and women, and it threatens to impose onerous requirements on employers to correct gaps over which they have little control."
That's not too surprisingly an allegation for AEI.  That organization has long promoted the "advancement of free enterprise capitalism." Its board of trustees is literally a who's who of leading business and financial executives. Hardly what one would call a disinterested party
But for the Republicans, it is a link to the kind of power player that can finance re-election campaigns.

On the other side of the political aisle, Senate Majority Leader Harry Reid (D-NV) told reporters, "For reasons known only to them, Senate Republicans don't appear to be interested in closing the wage gap for working women."

A Look Back
Turning back the clock 78 years, we see this June 1936 editorial cartoon in a New York newspaper. The cartoon shows an exhausted bedraggle cleaning women holding a note that reads:
Any wage they can get away with.
"It's Constitutional!" was the title. What could the cartoon be referring to? 
Because it seemed so timely, it sparked my curiosity. 

Just a two days before the publication of that cartoon, the conservative Supreme Court had handed down one of its most startling and most unpopular decisions.

In the case of Morehead vs. New York, the court struck down a New York minimum‐wage laws for women and children. 

By narrow vote of 5 to 4, the court found that right of employers and employees to negotiate and to make contracts for wages in return for work was "part of the liberty protected by the due process clause" of the Fourteenth Amendment. Accordingly, the state could not interfere. It could not enact legislation that would prohibit, change or nullify contracts between employers and adult female workers as to the amount of wages. 

In effect, it allowed employers to dictate the terms of employment and wages for women validating the practice of paying female employees at a much lower rate. With that the high court gave its approval to inequality for women. Minimum wage laws for women, it said, were invalid.

Outrage and Irony
The backlash against the court's decision was unprecedented and immediate. In the dissent, Chief Justice Charles Evans Hughes wrote that the decision failed to recognize the states' obligations. States had to have "the power to protect women from being exploited by overreaching employers."

Another judge, Justice Harlan Fiske Stone wrote a scathing criticism of the decision. He observed "the grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their service for less than is needful to keep their body and soul together."  

He went on to write:
The Fourteenth Amendment has no more embedded in our Constitution our preference for some particular economic beliefs than it has adopted, in the name of liberty, the system of theology which we may happen to approve."
(That, my friends, statement is worth writing down.)

The Roosevelt's Secretary of the Interior, Harold Ickes, had this to say about the court decision.
"If this decision does not outrage the moral sense of the country, nothing will."
One feminist group of the day said:
"It is hair-raising to consider how very close women in America came to being ruled inferior."
The idea that women could be considered undeserving equal pay to men was so at odds with public opinion that the 1936 national conventions of both parties called for the court's decision to be modified or repudiated.

There was something deeply unjust and un-American about the Court's decision. Politically, both parties saw the political wisdom in taking a negative stand on sex discrimination. You'd have to be crazy not to.

An Unexpected Reversal
Interestingly, however, within a year, the Court would take a "dramatic reversal of course," with the the sudden jurisprudential shift by Associate Justice Owen Roberts.
In other words, he changed his mind on the subject. 

The event, which left a lot of people bewildered or amused, became famously known as “the switch in time that saved nine.”

That requires a bit of explanation. President Roosevelt was so incensed by what he saw as an activist Supreme Court that he proposed some concrete reform of the Judicial branch of government. The number of judges on the bench, he suggested, would be much more dependent on the ages of the judges.

It was a bold move but not at all un-Constitutional.

Some critics were quick to call Roosevelt's proposals "court-stacking. Others thought the idea was sensible, bringing a much-needed balance to what many saw as judicial overreach by the conservative bench. Roosevelt's suggestion was taken seriously by the Congress. Even though, Roosevelt's idea had substantial backing, it was eventually dropped when one of the key supporters in Congress died suddenly. 
But that is not to say it was an unsuccessful political gambit.

Less than two months later, the court returned with a decision in the case West Coast Hotel Co. v. Parrish. In that case, the court inexplicably upheld the constitutionality of minimum wage legislation. In other words, it ruled completely the opposite from its earlier decision only a year before. 
Whether the two events are actually related has been much disputed by historians. It's hard not to see a connection.

Nevertheless, Roosevelt's supporters jeered at the court's sudden change of heart. As Attorney General Homer Cummings said,
The Constitution on Monday, March 29, 1937 does not mean the same thing that it meant on Monday June 1, 1936.
Altogether it was an embarrassing episode for the Supreme Court. (Nearly as embarrassing as the Citizens United case.)

Siezing the Advantage
Had the president stopped there, it would have been considered a victory. However, Roosevelt was not quite finished. 

With Democratic majorities in both the House of Representatives and the Senate, Roosevelt saw an opportunity too good to pass up.  
A year after the great reversal, Congress passed The Fair Labor Standards Act of 1938 

This legislation was in many ways a revolution for American workers. For example, the law set a fixed workweek and a maximum number of hours. It guaranteed "time-and-a-half" for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor."

Nearly 700,000 workers were affected by the wage increase initially and some 13 million more were ultimately affected by the hours provision. By making the legislation all inclusive, the act had a huge impact on white males- as they composed a greater percentage of the labor force at that time. In fact, only 14 percent of women were affected by the laws. 
But importantly, it established a national minimum wage with no exemption based on gender. Whether male or female, an employee was an employee. 

It was, as Roosevelt said, “the most far-reaching, far-sighted program for the benefit of workers ever adopted in this or any other country.”

And it was only the first step.

A Generation Later
Nearly thirty years later, another Democratic president, John Kennedy, passed  certain amendments to the 1936 legislation. It was called The Equal Pay Act of 1963
Signed into law on June 10, 1963, the laws specifically targeted wage disparity based on sex. At the signing Kennedy said,
This measure adds to our laws another structure basic to democracy. It will add protection at the working place to the women, the same rights at the working place in a sense that they have enjoyed at the polling place.

While much remains to be done to achieve full equality of economic opportunity... this legislation is a significant step forward.

Our economy today depends upon women in the labor force... It is extremely important that adequate provisions be made for reasonable levels of income to them, for the care of the children which they must leave at home or in school and for the protection of the family unit...
Economically it made good sense to ensure that women earned a wage they could survive on.
The lower the income, the higher the probability that the mother must work... Where the mother is the sole support of the family, she often must face the hard choice of either accepting public assistance or taking a position at a pay rate which averages less than two-thirds of the pay rate for men.
 That's as true today as in 1963. He concluded by saying:
I am grateful to Congress who worked so diligently to guide the Equal Pay Act through. It is a first step. It affirms our determination that when women enter the labor force, they will find equality in their pay envelopes.
In turn, Congress gave its own reasons for their necessity. Sex discrimination, they said,
  • depresses wages and living standards for employees necessary for their health and efficiency;
  • prevents the maximum utilization of the available labor resources;
  • tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
  • burdens commerce and the free flow of goods in commerce; and
  • constitutes an unfair method of competition.
Noticeably absent from the reasoning was the moral argument. The reasons, as we see, were based solely on economical grounds. Ironically, in 2014, Republican Senators used the economic consequences of equality legislation as the main reason to block the same sort of legislation. 

Surely both Congresses can't be correct. 

The Dead End?
This nearly brings us up to date.
In January 2013, Maryland Democratic Senator Barbara Mikulski introduced Paycheck Fairness Act. It was to have amended Roosevelt's Fair Labor Standards Act and Kennedy's Equal Pay Act. 

In particular, the legislation attempted to close the loopholes in the past sex discrimination prohibition laws. Additionally the bill made employers who violated the law liable for civil action in court for punitive damages. It would, in short, have made it much harder for an employer to deny women equal pay for equal work. 
This then was the legislation that Republican Senators closed down. 

If the Republican senators' decision last April is anything to go by, there are still conservative politicians in Congress who like the justices of 1936 are willing to play political games with the lives of women. They may even think women don't actually deserve equal pay to men. 

Despite the possibility of fall-out. they seemed to show no great fear of retribution by the majority of women voters come November. 

That could prove, if women assert their prerogative by voting, to be a costly miscalculation for the Republicans.