Keeping Women in their Place: Stereotyping Per Se As a Form of Employment Discrimination

Abstract

Despite some evidence pointing to its effectiveness,' the high hopes for Title VII of the Civil Rights Act of 1964 are as yet unfulfilled. Very simply, sex segregation' of the work force has not decreased measurably in the last decade. Women continue to be clustered in low-paying, low prestige jobs, while white males continue to dominate the more lucrative, challenging and responsible occupations.

Job segregation harms both the individual and society. Individuals are stifled in their quest for self-fulfillment, while society loses the special contribution those persons could have made. On an economic level, the striking wage differentials associated with job segregation have a devastating impact on women workers, and particularly on female single parents. Fifteen years after the enactment of the Equal Pay Act' and Title VII, women earn on the average only 58% of what men do, a smaller percentage than in 1964. When all factors other than sex are separated out, women workers earn considerably less than comparably situated men. Such wage differentials ensure that Women will be dependent on and subservient to men, and they preclude tolerating labor market segregation under some unexpressed "separate but equal" rubric. It may have been assumed that wage differentials would be reduced gradually as Title VIPs proscription of discriminatory practices allowed members of the protected classes to move into positions formerly reserved for white men." But the walls have not tumbled down—even though legal developments now permit systemic attacks.

In the face of the persistent wage differentials associated with continued job segregation, some advocates have sought to attack wage inequities directly. Thus, under the slogan, "equal pay for equal value," it is argued that women grouped in typically female jobs should receive pay equal to that received by men holding male jobs where their work involves equivalent skill, effort, responsibility, and working conditions.

There is a sound theoretical basis for this approach. As Professor Ruth Blumrosen has demonstrated," where jobs are, or were, segregated by race or sex, the same discriminatory considerations that influenced initial job assignments and restrictions on transfer or promotion also influenced the rates of pay. Therefore, where jobs have been restricted to minorities or women, the rate of pay for these jobs has been discriminatorily depressed. Thus, it is appropriate to provide redress for such inequities in pay under our fair employment laws. Unfortunately, however, courts have thus far declined to accept the principle that workers are entitled to equal pay for work of equal value," despite some favorable precedent provided by decisions of the Equal Employment Opportunity Commission.