Michael S. Greco
President, American Bar Association
Sex Discrimination Issues
In US Employment Laws
Grand Marriott Hotel
Moscow, Russia
March 3, 2006
It is a pleasure to be back in Moscow, forty years after my last visit here, and I
look forward to a thought-provoking and open discussion of a number of legal issues
during this program.
My remarks this morning focus on an issue that has been of great concern in the
United States for many years, and which I understand is a focus of current attention in
Russia: discrimination based on sex, particularly in the context of employment.
Employment discrimination based on sex is manifested in a number of discrete
areas, including hiring, promotions, compensation, training and other educational
opportunities, health care and other benefits, leave time for child or family care, and
termination of employment. Before commenting on a few of these specific areas, I want
to note that the struggle for equal treatment under the law for women and men has been
a long one in the United States – and it still goes on today.
In the early days of the United States, women had very few legal rights. They
were not allowed to vote or to serve on juries. In many cases, they could not inherit
property, and they were prohibited or strongly discouraged from pursuing certain
professions or occupations – especially if they had children.
It was very difficult for women to bring cases in court, and they frequently were
forced to rely on the good graces of the men in their lives to pursue, on their behalf,
what few legal rights they enjoyed. Women were second-class citizens in many
respects. Beginning in the late 19th century with the women’s suffrage movement,
women began to demand more forcefully the basic rights that had been denied them for
over a century in American life.
The passage of the 19th Amendment to the U.S. Constitution in 1920 finally gave
women the right to vote, and helped to usher in changes that expanded rights for
women in a number of other areas throughout the 20th century. A number of broader
social changes also helped to bring about changes in the law and legal protections for
women.
During World War II, for example, millions of women went to work in factories
and other jobs to support the war effort while men were overseas fighting. Without
these women – who were symbolized by “Rosie the Riveter,” a war-time poster that
depicted the woman factory worker who built airplanes and other weapons – the United
States simply could not have produced the enormous arsenal that it did during the war.
In addition to the women who worked civilian jobs on the home front, many
thousands of women also joined the armed forces and performed critical support roles
for the war effort. But when the war ended and many male soldiers returned to reclaim
their old jobs, women found that they were back where they started before the war –
with limited job opportunities that often restricted them to traditionally “female” jobs,
such as secretaries, domestic workers, seamstresses, and the like.
This experience helped to spark a new women’s rights movement in the US. The
next generation of women took up the cause in the 1960s and 1970s with calls for an
Equal Rights Amendment to the US Constitution – which has not yet been adopted, but
which helped pave the way for many other specific laws and court decisions expanding
legal rights and protections for women – particularly in employment.
Under the US legal system today, there are more than one hundred federal, state
and local laws relating to discrimination in employment. Some of these laws focus
exclusively on discrimination based on one characteristic, such as sex, race, ethnicity,
disability, or age, while others prohibit discrimination more broadly.
One of the areas that has received the greatest attention in US law and public
discourse is the issue of equity in compensation.
“Equal Pay for Equal Work” has long been a rallying cry of supporters for the
equal rights of women. Disparities in pay for women and men have been a long-running
problem in the US and around the world. In the US, women are catching up to men in
pay, but a significant gap persists. Forty years ago, women earned, on average, 59% of
what men earned. Today, women earn about 77% of what men earn – for an earnings
gap of 23%.
While these figures are at least going in the right direction, recent studies have
shown that the gap in real earnings over time is much larger – due to several factors,
including that women are several times more likely than men to experience long periods
of no income at all due to time taken off to raise children and care for sick or elderly
family members.
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One study, conducted in 2004 by the Institute for Women’s Policy Research,
found that women workers, in their prime earning years, make only 38% of what men
earn. The study looked at cumulative earnings over a 15- year time period for workers
in their prime – from ages 26 to 59.
The average working woman earned approximately $274,000 while the average
working man earned nearly $723,000 (in 1999 dollars). This gap of 62% is more than
twice as large as the 23% gap that is based on earnings in a single year.
Women also continue to be more vulnerable to being laid off in bad economic
times, and they tend to be clustered in lower-paying jobs that lack health care and other
benefits that come with higher-paying, more prestigious jobs.
When women take time off from work, they also find it difficult to regain their
previous jobs and salaries – gaps in work history are still viewed unfavorably by many
employers, despite the expanded legal rights that are designed to protect women.
One of the most important laws in this area was the Equal Pay Act of 1963,
which amended the Fair Labor Standards Act of 1938. The Equal Pay Act prohibits
wage discrimination based on gender, and provides mechanisms for enforcement
through lawsuits and through government regulation.
One year after the Equal Pay Act was adopted, the US Congress passed Title VII
of the Civil Rights Act of 1964 to prohibit discrimination in all aspects of employment,
including hiring, firing, and promotion. (Title VII of the Civil Rights Act also prohibits
discrimination based on race, color, religion and national origin.) Title VII has been
amended or supplemented many times since 1964 to expand employment protections
for older workers, people with disabilities, and women. For example, in 1978, Congress
passed the Pregnancy Discrimination Act to outlaw discrimination in employment based
on pregnancy.
The Civil Rights Act of 1991 greatly expanded the remedies available to
employees who can prove that they have suffered discrimination under Title VII.
Previously, only lost wages and other direct, actual damages could be recovered under
Title VII. The Civil Rights Act of 1991 provides for trial by jury for such claims, and
makes it possible for plaintiffs to recover punitive damages and compensatory damages
(for pain and suffering).
American courts have ruled consistently to uphold key provisions of Title VII,
especially those rooted in the principle that employment practices cannot treat women
as the “weaker sex” that needs protection. For example, courts have held that an
employer’s refusal to hire women, as opposed to men, with preschool age children was
discriminatory. Courts have also ruled that if employers offer childcare benefits and
leave time to women, they must also offer it to men.
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Many lawsuits for unequal treatment have been brought to court under both the
Equal Pay Act and Title VII of the Civil Rights Act, but employment discrimination based
on sex continues to be a problem.
Just in the past few years, we have seen high-profile lawsuits against large
American and multinational corporations for denying women equal pay, benefits, and
opportunities for promotions. Employers in the US and around the world must be more
vigilant in guarding against discrimination based on sex, as the legal protections for
women continue to expand and as they become more integrated in all segments of the
labor force.
According to the US Department of Labor, women now represent 46% of the total
labor force in the US. It is projected that women will account for 55% of the increase in
total labor force growth between 2002 and 2012. Of all women in the labor force in the
US, 74% work full-time, while 26% work part-time. And the largest percentage of
employed women – 38% -- are in management, professional, and related occupations,
while 35% work in sales and office occupations.
I cite these figures because they show that women are making steady strides in
employment – and hopefully someday soon, will be on meaningfully equal footing with
men.
Another area of US employment law that has evolved rapidly over the past two
decades relates to guaranteed leave time. The Family and Medical Leave Act, adopted
in 1993, requires all employers of more than 50 people to provide up to twelve weeks of
unpaid leave per year for the birth of a child, adoption, serious illness, or to care for a
family member with a serious illness. This law prohibits employers from firing workers
who take family leave time, and requires them to make all reasonable efforts to keep
workers in the same job (with some exceptions allowed).
Men can and do take advantage of the Family and Medical Leave Act, but it was
designed largely to provide expanded job protections and legal protections for women
workers, who previously faced job loss or other serious adverse consequences if they
took time off to care for children or other family members.
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I am committed to eradicating discrimination based on sex in the law and
throughout society. I served for three years on the ABA Commission on Women in the
Legal Profession, which works to promote opportunities for women lawyers to
participate on equal footing with their male colleagues.
Women are catching up to men in the legal profession in the United States, but
we have more work to do before we can say that true equality exists. Women now
make up 50% of new law students in the US, but they are still under-represented in the
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highest ranks of the legal profession – as managing and senior partners in law firms and
general counsel in large corporations.
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It is simply unacceptable today for women to be denied equal opportunity and
equal protection under the law. It is morally wrong, it is bad public policy, and it is
disrespectful to our mothers, sisters, daughters, aunts, nieces, and women friends and
colleagues.
I look forward to discussing with you employment discrimination issues that are
of particular interest here in Russia.
Thank you for your attention.
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