Shaping Judicial Response to Gender Discrimination in Employment Compensation

Abstract

The present controversy over pay inequity between men and women in employment has been unnecessarily limited to a debate on comparable worth. This obfuscates a more general Title VII approach to pay disparities because comparable worth, despite its popularity in the literature, represents only a small part of many complex legal avenues by which discrimination is challenged in practice. Indeed, most recent gender discrimination lawsuits do not neatly fit in the comparable worth framework. It would make more sense if attention were focused instead on what kinds of policies, practices, or nonaction are likely to be in violation of Title VII. Whether comparable worth per se creates a cause of action under Title VII would be an inquiry without much practical significance because most recently the U.S. Court of Appeals, Ninth Circuit, once again refused to recognize comparable worth as a viable legal theory in Spaulding v. University of Washington in 1984 [2] and AFSCME v. State of Washington in 1985.[3]