Vol. 10 No. 2 (February 2000) pp. 111-114.

LEGALIZING GENDER INEQUALITY: COURTS, MARKETS, AND UNEQUAL PAY FOR WOMEN IN AMERICA by Robert L. Nelson and William P. Bridges. New York: Cambridge University Press, 1999. 368 pp. Cloth $59.95. ISBN 0-521-62129-0. Paper $19.95.

Reviewed by Sara C. Benesh, Department of Political Science, University of New Orleans.

There was a time when we heard much, both in scholarly and public debate, about between-gender wage inequality. However, it seems that with the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 and the courts' interpretations thereof, the issue is now largely dead. It is assumed that courts no longer tolerate within-job inequality. Therefore, no longer is it permissible to pay a man and woman different salaries for performing the exact same job. Women do have legal redress when it comes to within-job pay discrimination. It is also assumed though that between-job wage inequality is wholly market driven, or the fact that physical plant workers make more than secretaries at a given university is attributable directly to differences in market shares, and so we have come to believe that women have very little recourse in terms of wage equality between-jobs. There simply is no legal remedy.

This was not always the case, however. Early in the pay equity movement, there was some indication that the courts did in fact perceive between-job wage differences to be actionable. The Supreme Court first established that such between-job pay inequity was impermissible and said in COUNTY OF WASHINGTON v. GUNTHER (1981) that it would not allow blatant discrimination against women workers just because they tended to work in different jobs. After that decision, however, the courts seemed to back away from what is called "comparable worth" analyses of between-job wage differences and, for the most part, began to blame the market for any such differences in pay. Because judges accepted the market at face value and accepted with it the notion that pay differences stemmed from those market differences and had little to do with employer discrimination, the courts have closed the door to much pay equity litigation.

The authors of this book challenge the assertion that differences in pay between men and women are wholly market driven and attempt to advance a new theory of gender pay inequality that includes market effects and efficiency concerns but that also looks to organizational practices that tend to contribute to pay differentials. They seem to find a middle ground between comparable worth advocates and those concerned mostly with market explanations of wage inequality. The issue of wage inequality is not dead, according to these authors, but needs a new direction to resuscitate itself.

In LEGALIZING GENDER INEQUALITY, the authors employ a clever research design to advance their thesis that "the core empirical claims of the dominant discourse are largely untested, have far more

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limited application in the American economy than the discourse acknowledges, and, in several significant organizational contexts, are demonstrably wrong" (p. 2).

the book starts with a discussion of several schools of thought about the gender gap in pay. They note that economists tend to blame gender choices and the market for most of the gap; however, sociologists either focus on internal labor markets and the effect of bureaucratic personnel systems which hinder adherence to market determinants of pay or turn to criticisms of the market as inherently discriminatory. They see a failure of the economists to recognize organizations and a tendency for the sociologists to either ignore the market or to dismiss it as tainted. Hence, they offer an "organizational inequality" model which considers variables such as size
and complexity of the company, the existence of an internal labor market, the role of unions, the personnel system in place, the nature of the product, historical and social characteristics of the industry, whether the organization is public or private, and traditional market considerations.

The theory, as stated earlier, is that differences in pay between male-and female-dominated jobs are due not only to the market or to efficiency considerations but also to conscious choices made by employers in their wage-setting practices. To test this notion of an additional influence on wage inequality, the authors employ an unusual but seemingly useful design. They examine four cases in which plaintiffs allege some sort of gender discrimination in pay and use the data presented by either side relating to pay inequity. Taking their theory of organizational inequality, they reanalyze the data. In most cases they find at least some indication that,
even after controlling for many determinants of wage differences and after controlling for market influences, there remains a gender gap in pay. They indicate that there are organizational structures in place that seem to explain the gap's existence. Had the court known this or had it really analyzed the evidence presented, it could have found that the employers were liable for the wage differential even though that discrimination may not have been invidious. Because of the way the systems worked, which oftentimes had roots in the way the systems worked long before gender equality was an issue, discrimination resulted.

To bring such latent discrimination into the policy debate and to the attention of corporate executives, the authors advocate new regulations on pay setting. They encourage the legislature to mandate periodic pay equity studies or audits by independent consultants. They ask the courts to "move away from a standard of culpability, in which the touchstone of liability is evidence of invidious intent, toward a standard of responsibility, in which the touchstone of liability is wage differentials that cannot be explained by genuine market and efficiency considerations" (p. 349). They also accuse judges of deciding cases ideologically. The ideology the judges are using, they say, is hegemonic. Judges cite the market extensively in their opinions as the cause of differences in pay, but they seldom actually analyze the effect of the market on the cases under consideration. This means, according to the authors, that, "they take the market for granted" (p. 356). Had the
courts in the four cases they analyzed really explored the market explanation, they may have found that unexplained differences in pay remained. It is this failure to explicitly test for market influences that has dampened the

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pay equity movement and virtually eliminated between-job pay equity claims.

The book seems to speak to a very exclusive audience, of which I am not a part. Gender inequality is mostly the domain of sociologists - the authors' profession - and wage setting seemingly the realm of economists. As stated earlier, their methodology is intriguing and the design of their research lends credibility to their findings. Although theirs is a case-study approach, within the case studies the authors conduct rigorous statistical analyses to isolate the various effects on wage determination. They test multivariate models that seemingly control for at least a defensible set of alternative explanations for wages. I am convinced by their findings that the court, and even at times the plaintiffs in the case, overlooked some interesting analyses that may have changed the outcome of the cases. A really smart plaintiff might consider hiring the pair as expert witnesses.

There are places in the book where the analysis does not exactly speak to the conclusions the authors' draw. Some inferences also appear to be unjustified. The authors are most certainly convinced that between-job discrimination is an evil to be fought and so at times tend to make more of the results than may be warranted. Although many of the results of the case studies are indisputable, there seems to be an overall exaggeration of the importance of the differences encountered and an attribution of these differences to the management of these companies and their devaluation of female jobs. Sometimes I am totally convinced that the court missed a
glaring difference between jobs. Other times I believe that even were these authors to present their data, the court would have decided as it did. It also seems to me that, given their interest in social science data presented to the court as well as the treatment of that data by the court, they should have discussed the acceptance of and reliance upon social science data by courts generally. Surely the courts have not been overly accepting of such evidence. Perhaps this practice has in part created their reliance on the market.

I wonder about the assertion that the belief in the primacy of the market in explaining wage differences is a hegemonic ideology effecting judges as well. Perhaps some of these judges' decisions could be explained by knowing their ideology, PERIOD. In other words, Judge (now Justice) Kennedy rendered a decision denying responsibility to employers for market-induced pay differences that they cite. Kennedy happens to be conservative. They also speak of Judge Posner invoking the market as an excuse for gender wage differentials. Again, Posner is a conservative. They lament Justice Rehnquist's dissent in the GUNTHER case that may have contributed to the precedent's demise because other judges cited his dissent widely. Rehnquist is also a conservative. Perhaps there is an ideological component here that the authors are missing: it doesn't matter at all what social scientific evidence is presented - some judges will always find for the business defendant. The authors could have consulted the vast literature on judicial behavior in political science to inform them on this count.

The usual criticisms of the entire pay equity movement might also be levied upon their work. They assume that differential pay between, to use the example cited earlier, physical plant workers and secretaries, is based on sex. True, they demonstrate that even when one controls for many differences between the workers

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(experience, education, skills, etc.) an unexplained gap remains. However, they assume that that gap is due to organizational design. They further assert that the way the pay scale is created in some organizations has a gendered component to it. It bothers me though that they oftentimes control for the worker, as noted above, but not for the job. They talk in terms of jobs being comparable via their "point values" but never really say what considerations go into rating the jobs as such. This makes me wonder whether there might be some legitimate differences among the jobs they are comparing that they are missing; Such differences might have very little to do with gender. We should be informed about the way points are allocated and jobs compared.

In the end, this is a well-written book about an important topic that is well-argued and empirically grounded. However, some of the empirical work could have been more fully presented rather than being relegated, in many instances, to an appendix. Also, considerations such as inter-coder reliability, the possible violations of certain assumptions of ordinary least squares analysis, and, at times, the operationalization of certain variables could have been more carefully addressed. Those concerned with gender discrimination should most certainly read it and one would hope that the idea of looking a bit deeper into the data on organizational pay structure to determine whether there really is a gender bias would receive additional testing. Those studying organizational theories might also find much of use
here in the discussion of wage-setting practices and their effect on equality. LEGALIZING GENDER INEQUALITY may in fact be a breakthrough in between-job gender discrimination, and to the extent that it is, it deserves attention from the relevant audience: sociologists, economists, organizational theorists, and probably even lawyers trying these types of cases. Those readers solely interested in political science or in judicial behavior or judicial politics, however, will not miss much by skipping it. In fact, absent training in economics or sociology or some direct knowledge of the issues surrounding gender inequality in pay, the jargon contained here
can be, at times, overwhelming.

CASE REFERENCE:

COUNTY OF WASHINGTON V. GUNTHER, 452 U.S. 161 (1981].