Imagine you're a woman interviewing for a job you really want. You get a call the next day with an offer, and immediately accept it. Later, though, you discover that a male counterpart earns significantly more than you. When pressed for an explanation, your boss tells you that the man demanded more when he negotiated his starting pay.
If you sue for wage discrimination under this scenario, your chances of success would, unfortunately, be slim. Current rulings in employment law have permitted employers to hide behind the "she-didn't-ask-for-more" and other so-called market-based excuses as legitimate reasons for paying women less than men for the same job or one of equivalent value.
Here's how the system has been working: Under the crucial federal antidiscrimination law -- Title VII of the Civil Rights Act of 1964 -- a woman must prove that an employer was motivated by intent to discriminate when deciding to pay her less than a male counterpart. Therefore, employers who merely take advantage of the fact that a woman is willing to work for less won't be held liable for pay discrimination.
In a slightly different vein, under the federal Equal Pay Act -- which requires only that an employee prove that an employer paid men and women differently even though they performed the same job, not an intent to discriminate -- the law lets employers escape liability if they can show that the pay differentials are caused by a "factor other than sex." To avoid legal liability, employers trot out market-based excuses: The woman asked for less money, did not seek or negotiate strongly for a raise, or came to the job from a position that paid less. These excuses have, for example, shielded universities that paid female coaches considerably less than male coaches, or compensated female faculty members in male-dominated disciplines less than their male colleagues.
The current legal standard fails to account for the insidious results of gender differences in salary negotiation. A study of master's-degree candidates at Carnegie Mellon University by economist Linda Babcock found that only 7 percent of first-job-seeking women negotiated their salary, as opposed to 57 percent of men. There was no small consequence to this failure to negotiate. In their book Women Don't Ask: Negotiation and the Gender Divide (Princeton University Press, 2003), Babcock and co-author Sara Laschever found that candidates who negotiated increased their starting salaries by 7.4 percent (about $4,000), and that the starting salaries of males averaged 7.6 percent higher than the females'.
Babcock calculated that failing to negotiate for a first salary can lead to an overall loss of over $560,000 by age 60. That comprises a good chunk of the estimated overall wage gap between men and women -- further ex- acerbated by such other forms of gender discrimination as mommy tracking and sexual harassment -- which Brandeis University Women's Studies Research Center resident scholar Evelyn Murphy projects (using U.S. Census figures) costs women between $700,000 and $2 million over the course of a career.
But aren't women at fault for not negotiating? Babcock concluded that women are essentially trained not to and penalized by employers when they do. Rigid gender-based stereotypes and behavioral norms urge women to behave modestly and wait to be given what they deserve rather than negotiate for it. The economist also has shown that negotiating can sometimes hurt a female job candidate. In research she co-published last year, she found that female candidates who ask for higher salaries before receiving a formal job offer are often not hired at all. Not surprisingly, males who negotiate do not face similar negative consequences. This empirical evidence supports what many women already know from experience: When they ask for what they deserve, employers often view them as overly aggressive, pushy or too "difficult" to hire.
Given the tremendous ramifications of this pervasive discrimination, it's high time for courts to stop accepting excuses based on women's failure to negotiate, and instead put the burden of pay discrimination where it belongs: on employers. It's the employers who should be obligated to carefully evaluate their pay structures to ensure that female ap-plicants are paid what the position is worth -- and what similarly situated male applicants would be paid.
This sort of legal approach is not unprecedented. The U.S. Supreme Court has been willing to crack down on the use of stereotypes when they operate to the detriment of women. In the landmark 1989 case Price Waterhouse v. Hopkins, for example, the Courtheld that the employer should bear the responsibility for preventing the application of harmful gender-based stereotypes that disadvantage women.
Ann Hopkins, a certified public accountant who was seeking promotion to partner in her firm, was criticized by male partners for not fitting tradi- tional gender roles and was turned down despite her exemplary record. She was deemed too "macho" by one partner, and in need of "a course at charm school" by another. The Court concluded that the employer should be held accountable for letting these stereotypes pollute the promotion decisions, noting, "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind."
Women are in a similar bind when it comes to negotiating for equitable pay. Employers should not let outdated gender norms taint their employment decisions. And it's time for advocates to push the courts to step in and tell employers: no more excuses for gender- based pay discrimination.
The partisan game of "gotcha" politics is in full swing with the Mark Foley scandal occupying center stage. Unfortunately, in this political drama that has overtaken Washington, an issue of critical importance has been overlooked. Republican leaders who were given strong indications that something was gravely amiss in the interactions between Congressman Foley and the Congressional pages, failed miserably in their legal obligations to protect their young employees from sexual harassment. In this respect, Congress joins the ranks of many of the nation's leading retail and food service establishments -- workplaces where teens have been subjected to harassment with impunity in what has increasingly become a vile rite of passage for youth joining the American workforce.
Studies indicate that throughout America, sexual harassment on the job is a fact of life for many teens. A recently completed study by professors Susan Fineran of the University of Southern Maine and James Gruber of the University of Michigan-Dearborn found that 46.8 percent of female working students had been sexually harassed in the last year. In a previous study, Fineran had found that 35 percent of high school students who worked part time had experienced sexual harassment on the job.
Teens are particularly vulnerable to workplace harassment because of their low status and a lack of awareness about their rights. In recent years, the number of sexual harassment complaints filed by teens with the Equal Employment Opportunity Commission (EEOC) has dramatically increased. Recently, the EEOC has made some effort to respond to this growing problem, by initiating an educational campaign (www.youthatwork.org) and bringing cases against some well known retail and service establishments for permitting sexual harassment of teenagers including McDonald's and Burger King franchises, Kmart, often resulting in large settlements.
However, many of our nation's teenagers unfortunately continue to launch their working lives in environments where submitting to sexual harassment is often the price of a good job. And for many, as in the case of the Congressional pages who endured vile harassment but chose to remain silent about it, the message has been reinforced that "you have to go along to get along" in order to get good references and advance in one's career. The response by the Congressional leadership to this debacle has been almost as indefensible as the harassment itself.
Although all the facts are not yet in, it seems undeniable that Republican leaders turned a blind eye to the sexual harassment they knew was occurring, leaving teenage employees prey to Rep. Foley's sexually predatory conduct. Those inclined to ignore or explain away the Republican leadership's failure to take action, might pause to consider, would they be given a similar reprieve if they failed to protect teens under their supervision from the predatory behavior of an adult supervisor? Not likely.
In 1964, Congress passed Title VII, which banned workplace gender discrimination for employers with 15 or more employees. Twenty years ago, in its landmark case, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court ruled that sexual harassment, which includes unwelcome sexual advances and sexualized banter of the type featured in Foley's e-mails, constitutes unlawful sex discrimination. Congress chose not to hold itself accountability under this law until 1995, when it passed the Congressional Accountability Act. You would not know it by their responses to reports made to them about Foley's blatantly improper conduct vis-a-vis the Congressional pages -- which included a late night drunken attempt to enter their dorm -- but this law imposes the same legal obligations on members of Congress and their staff as it does on other employers.
In two 1998 landmark cases, Burlington Indus. v. Ellerth and Faragher v. City of Boca Raton, the Supreme Court held that an employer must exercise "reasonable care to prevent and correct promptly any sexually harassing behavior" in order to avoid liability for a sexually hostile work environment. A chat with the accused, accepting his patently implausible explanation and telling him not to do it again, does not meet that standard. Nor does failing to act out of deference to an employee's parents' wishes absolve Republican leaders from legal responsibility here.
Taking real action to prevent sexual harassment of teens at work requires first, an acknowledgement that this is serious problem that gives rise to obligations on the part of the employer which are heightened by the vulnerable status of the teen employee. Second, it requires facing the problem head on, and taking responsibility to ensure protection of the victim and any other potential victims.
Often we hear politicians talk about the importance of setting examples for our kids, and in election season, we hear constantly from politicians on both sides of the aisle about how important it is that we protect our children and families from the dangers that lurk in our world. This is a perfect opportunity for the Congress to set a real example for Americans. Show us that you take teen sexual harassment seriously, hold the responsible parties accountable.
The law is clear: after Republican leaders learned about the inappropriate e-mail to a congressional page, they were obligated, as employers, to act to correct the problem. Their inaction in the face of obvious risk to the teens was a clear breach of their legal obligations, and the pathetic attempts to deflect responsibility and blame Democrats since the scandal broke constitutes a tremendous breach of public trust.