Employers Must Step Up on Pay Equity, EEOC's Burrows Says

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By Kevin McGowan

July 31 — Employers can play a proactive role in helping the Equal Employment Opportunity Commission to close a persistent gender gap in average pay for female workers compared with male workers, EEOC Commissioner Charlotte Burrows (D) said July 30.

Speaking at the National Industry Liaison Group's annual conference in New York, Burrows said the EEOC values its collaboration with employers and the partnership between the federal agency and businesses that share an interest in advancing equal employment opportunity has contributed to the substantial progress made since Title VII of the 1964 Civil Rights Act was enacted and the EEOC opened its doors in 1965.

But Burrows said although women's average wages rose from 41 cents for every dollar earned by men in 1965 to about 80 cents for every dollar earned by men in the early 1980s, progress has stalled since then. Currently, women earn only 77 cents for every dollar earned by men, and the gender pay gap is even more pronounced for black females and Hispanic women in the workforce, she said. Black women earn only about 66 cents for every dollar earned by white male workers and Hispanic women earn only 54 cents for every dollar earned by white men, Burrows said.

What Employers Can Do

Employers can help by making clear to their managers that pay equity is corporate policy and will be enforced internally, said Burrows, who joined the EEOC last December after serving as a Justice Department official and top civil rights aide to former Sen. Edward Kennedy (D-Mass.).

Employers also can advance pay equity by conducting internal analyses of their compensation systems and fixing any sex-based disparities that are revealed, Burrows said. Businesses also should adopt “transparent” pay and promotion systems in which workers aren't penalized for disclosing or discussing their pay or asking about the compensation of co-workers, she said.

Burrows lauded President Barack Obama's Executive Order 13,665, issued last year, that bars federal contractors from enforcing pay secrecy policies and retaliating against workers who disclose or discuss their pay. The Labor Department's Office of Federal Contract Compliance Programs has issued a proposed rule to enforce Obama's executive order, and a final rule is expected by the end of 2015.

Employer policies prohibiting pay discussions can “act as a significant obstacle” to ensuring equal pay for women, Burrows said. Such policies also “may make litigation more likely” because workers suspecting discriminatory pay practices must sue to get discovery of compensation information, she said.

Once finalized, the Labor Department regulations implementing EO 13,665 will reach federal contractors that employ about 26 million workers, Burrows said.

If current workplace conditions continue, the gender pay gap wouldn't be closed for another 50 years, Burrows said. That's unacceptable because the shortfall in women's pay affects families as well as the individual workers and has a “ripple effect” that reduces women's Social Security and private retirement pay because their lifetime earnings are circumscribed, she said.

It also hampers employers' ability to attract and retain the best talent available, Burrows said.

‘Stalled' Progress on Race 

Other areas in which more progress is needed are the employment of persons with disabilities; eradicating continued race discrimination in some workplaces; securing employment protections for lesbian, gay, bisexual and transgender individuals; and preventing retaliation against workers who lodge discrimination complaints, Burrows said.

In all these areas, the EEOC and employers can collaborate to prevent discrimination or retaliation before it occurs, she said.

Regarding employment opportunities for black workers, Burrows said much has been achieved since the 1960s. But she added that the data show that after a period of “strong and remarkable progress” for blacks in the workplace from 1965 to 1980, things have “stalled a bit.” The EEOC even has seen evidence of “re-segregation” in some workplaces by race and by sex, Burrows said.

The EEOC has made a priority of continued racial and sexual integration of the workforce at all levels, Burrows said. When employers commit to adopting transparent policies for hiring and promotion, then progress can be made, she said.

The EEOC has made a priority of continued racial and sexual integration of the workforce at all levels, Burrows said. When employers commit to adopting transparent policies for hiring and promotion, then progress can be made, she said. In contrast, a “word of mouth” system for identifying candidates for advancement can exclude whole groups of people, Burrows said.

Avoiding liability for discrimination isn't the only reason employers should adopt transparent policies, Burrows said. There's a “compelling business reason” for policies that promote a diverse workplace, as Census Bureau projections indicate that by 2043, the U.S. will be a “majority minority” nation, she said.

Employers that “know how to recruit, hire and retain persons of color” will increase their competitive advantage in the marketplace, Burrows said.

LGBT Rights on Rise 

Although the recent U.S. Supreme Court decision recognizing a constitutional right to same-sex marriage doesn't directly affect employment, Burrows said, the court articulated a “basic principle of equality” that will have workplace repercussions.

Most large U.S. companies, including federal contractors, already prohibit workplace discrimination against LGBT individuals, Burrows said. Recent surveys show about 89 percent of Fortune 500 companies bar discrimination based on sexual orientation and about 60 percent of those large employers also prohibit bias based on gender identity, she said. Some of the strongest amicus support for LGBT rights in the Supreme Court marriage case came from business organizations, she noted.

The EEOC in a federal sector case against the Department of Transportation for the first time said alleged that bias based on sexual orientation is “necessarily sex discrimination” under Title VII. The agency in 2012 previously had decided in a federal sector case that Title VII protects transgender persons from sex discrimination based on failure to conform with gender stereotypes.

The EEOC takes the same position under Title VII with respect to private employers, Burrows said.

Addressing the contractors' representatives, Burrows said she hopes “we can develop best practices” to ensure LGBT persons are treated with respect and equality in the workplace.

Retaliation Hinders Enforcement 

Retaliation charges under Title VII and the other laws the EEOC enforces have become the most frequently cited allegation in both private sector and federal cases, Burrows said. The EEOC recently held a public meeting on the issue, seeking input on ways to curb retaliation against employees who lodge bias complaints.

Retaliation “creates an atmosphere of intimidation” that affects the entire workplace, not just the alleged victim, Burrows said. It also impedes EEOC enforcement, as the anti-discrimination laws largely depend on individual charges to trigger agency investigations, lawsuits and remedies, she said.

“If people are afraid to tell us of a problem, we can't help,” Burrows said. The key to curbing retaliation appears to be “creating a culture of respect” in the workplace, she said.

The EEOC at age 50 looks back on enormous progress in civil rights, but “there's no question we still have some challenges,” Burrows said.

The agency is “eager” to continue working with its “partners and colleagues” to increase equal opportunity for all in the workplace, she said.

To contact the reporter on this story: Kevin McGowan in New York at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com