Man, Economy, and Liberty

10

Comparable Worth:
Theoretical Foundations

Ellen Frankel Paul

Comparable worth is sweeping the country. In 25 states, studies are currently being conducted on wage disparities between men and women and how they might be rectified, while five other states have already implemented comparable worth schemes. A bill calling for a comparable worth study of the Federal bureaucracy passed the House of Representatives in 1984.

Court cases have also leant some encouragement to the supporters of comparable worth. County of Washington v. Gunther, decided by the Supreme court in 1981, breathed new life into the comparable worth movement, opening the door for suits under Title VII of the Civil Rights Act of 1964 that would allow claims of something more than “equal pay for equal work,” the standard set in the Equal Pay Act of 1963. 1 In 1985, the United States District Court for the Western District of Washington decided a case, American Federation of State, County and Municipal Employees (AFSCME) v. State of Washington, which invigorated the movement even more.2 In this case, Judge Tanner held that the State of Washington, which had instituted a series of comparable worth studies beginning in 1974, had to implement these findings. The plaintiffs, the class of those in women-dominated job classifications, were awarded back pay, injunctive relief and a declaratory judgment that the state was in violation of Title VII. The AFSCME case seemed to fulfill the promise held out to comparable worth advocates by Washington v. Gunther. However, that promise may prove illusory, as the Ninth Circuit Court of Appeals overturned on appeal the decision of the District Court.3

“Comparable worth,” “comparable work,” or the currently more fashionable “pay equity” is usually defined as the requirement that employers pay the same salaries to women in female-dominated job categories that they pay to men in male-dominated job categories who are performing work of comparable value to their employers. Although the definitions differ from advocate to advocate, what is clear is that the term “comparable worth” encompasses much more than equal pay for equal work. It is not sufficient, comparable worth activists argue, for women to be paid the same salaries for the same or substantially the same work. The Equal Pay Act, they contend, does not go far enough. If 80 percent of the women in the United States work in jobs which are 70 percent dominated by women,4 then something more must be done to alleviate their lot than simply securing them equal pay for equal work. Women earn a mere 64 percent of the salaries of males who likewise work full-time. Something must be radically amiss in a market system that produces such patent inequities, they conclude.

The market, for the comparable worth advocates, is corrupted by discrimination, for nothing else can sufficiently explain the discrepancies between women’s wages and men’s. As Joy Ann Grune, former Executive Director of the National Committee on Pay Equity, one of the leading activist groups, wrote:

Culture, history, psychiatry, and social relations all have a role in wage discrimination, as they do in other legal rights issues. They contribute to the creation and maintenance of a gender-based division of labor in the market economy that is old, pronounced, and pays women less.5

The market, Grune contends, will not spontaneously eliminate this alleged discrimination. Even when an employer acts to set wages with a non-discriminatory intent, if that employer uses prevailing market standards as his guide, those wages will reflect the prior discriminatory evaluations of other employers. Thus, remediation is necessary by government actions to break this chain of perpetuated inequities. Comparable worth, while it began in the public sector and has enjoyed its greatest successes there, is not a concept to be limited to government employment. Rather, its proponents wish to extend its purview eventually to all employment. In one state, Pennsylvania, legislation is pending which would do precisely that, apply comparable worth standards to private employment as well as public.

As an alternative to the allegedly defective market mechanism for setting wages, comparable worth would employ “objective” standards. For example, the state of Washington engaged the consulting firm of Norman Willis & Associates when it performed its first comparable worth study in 1974. The Willis study utilized a methodology similar to that used in comparable worth studies by other consulting firms. Each employment classification was assessed on the basis of four factors: (1) Knowledge and Skills (job knowledge, interpersonal communication skills, coordinating skills), (2) Mental Demands (independent judgment, decision making, problem solving requirements), (3) Accountability (freedom to take action, nature of the job’s impact, size of the job’s impact), and (4) Working Conditions (physical efforts, hazards, discomfort, environmental conditions).6 Evaluation committees assessed job classifications on these four criteria and awarded points to each. Comparable jobs, then, were those that achieved approximately the same overall point scores. In this way, such disparate jobs as secretary, nurse, surveyor, highwayman, etc., could be compared. This methodology attempts to replace subjective and, hence, discriminatory market decisions with objective, nondiscriminatory assessments by trained evaluators.

Comparable worth’s opponents have attempted to dispute the inference which the proponents draw from the raw data, i.e., that the wage disparity between the sexes can only be explained by discrimination on the part of employers. June O’Neil of the Urban Institute argues that the 64 percent figure for women’s work as compared to men’s is flawed because it defines full-time employment as 35 hours or more, thus ignoring the fact that full-time women work 9 to 10 percent fewer hours than men. She thinks a better statistic is hourly earnings. On this basis, women in 1983 earned 72 percent of what men earned. However, as O’Neil points out, this figure may mask some significant progress. Women in the 20 to 24 year-old age bracket earn 89 percent of their male peers’ earnings. O’Neil further points out that this gap has narrowed in recent years, with women in this same age-group earning only 81 percent of the male salary in 1979. Furthermore, as Thomas Sowell has pointed out, single women between the ages of 25 and 64 earn 91 percent of the income of men. Single men and single women are more nearly alike in their earning power than married men and married women. This leads O’Neil to speculate that factors other than discrimination account for the disparity in earnings between men and women. She enumerates several factors: women have lower investments in schooling; women currently employed have worked 60 percent of the time while men have worked almost continuously. These two factors alone can explain about half the earnings differential between the sexes, O’Neil contends. Other factors can explain most of the rest: women’s expectations are different from men’s, particularly in regard to their roles in the family; given these disparate roles, women prepared in high-school and college for homemaking tasks, and this is particularly true of middle-aged women and older women.7

O’Neil and other critics have pointed to additional problems with comparable worth. It would be too expensive to implement with a price tag somewhere around $300 billion. It would disrupt the American economy, increase inflation, drive up unemployment, and make American products less competitive on world markets. It would have a particularly adverse impact on women’s employment prospects. It would penalize employers for wage-setting acts over which they have little control, thus violating one of the principles of our legal system—that individuals should be penalized only for actions in which they are at fault.8 And pay equity for women would hurt blue-collar men, and blue-collar women also, because Willis-type schemes seem to favor education and other easily measured skills over manual labor.

In this paper, I do not wish to explore these objections to comparable worth. The comparable worth activists are right in one respect, I think. Justice and equity must prevail over considerations of efficiency. If right lies on the side of comparable worth, then comparable worth should prevail. Where I differ with those who endorse comparable worth, is that I strongly believe that justice and equity do not direct us to supplant market decisions by the decrees of experts. For, I am afraid, despite the assurances of some comparable worth advocates, that the decrees of experts is what comparable worth would involve in practice. The first section of this paper is devoted to an examination of the philosophical assumptions of the comparable worth position; the second section will present some arguments to show why, in a general way, the market ought to be appealing; and the final section will discuss why the market should be particularly appealing to those concerned with the welfare of women.

The Philosophical Assumptions of Comparable Worth

If we examine some of the philosophical assumptions of the comparable worth position (and I use the term “philosophical” rather loosely to include moral and economic assumptions), the idea of paying people according to such a scheme will seem much less attractive. I freely concede that, at least on the surface, the notion of comparable worth and even more of “pay equity” seems alluring and just. However, it involves accepting some assumptions which I take to be highly dubious and endorsing a view of equality which is contrary to our American tradition, unpersuasive as an ideal, and incapable of being put into practice without chaotic results.

Comparable Worth and Intrinsic Value

Comparable worth depends on an intrinsic value theory or an objective-value theory. It assumes that the worth of jobs to employers can be measured on an objective scale. If we leave aside, for the time being, the consideration of whether any given set of people can impartially implement such a system, the notions of intrinsic-value or objective value themselves are defective.

Intrinsic or objective value theories are by no means new. St. Thomas Aquinas and other medieval theorists endorsed a notion of “just price,” and this intrinsic-value view was exemplified in the guild system which set prices not only for the labor of guild members but also for their products. The classical economists of the nineteenth century, and Karl Marx too, argued for an objective theory of value—the labor theory of value. Normally, the classical economists contended, the price of commodities depends upon the amount of labor spent on bringing them to market. Market forces, such as scarcity or a temporary shift in demand, could modify this price, so that the market price would fluctuate around this norm. The theory had numerous problems. The principal problem was that it could not explain everyday market phenomena. For example, why is the price of water negligible while the price of diamonds is substantial: water has great use value to sustain life while diamonds have only a frivolous, ornamental function. The labor theory of value fell in the late nineteenth century to a more sophisticated theory, one which did not claim that value was derivative from any objective quality, but rather that value depended upon the subjective judgments of people in the marketplace, and the supply of the good in question.

This marginal utility theory of value had several noteworthy advantages over its objective, labor-theory competitor. It solved the water-diamond “paradox.” Diamonds are priced higher than water because people are willing to pay more for them. Diamonds are relatively scarce compared to water, hence the marginal unit of diamonds commands a higher price than the marginal unit of water. If water suddenly became scarce, people would value it higher and be willing to pay more to acquire it, and its price would rise. Also, the marginal theory explained what the labor theory could not, that is, how prices are set for everyday commodities in the market.

Despite Marx’s abhorrence of this fact, labor power is as much a commodity as anything else. The price of any particular kind of labor is set by the same criteria as anything else. The market price equates supply and demand; each laborer is paid the equivalent of his contribution to the enterprise. Marginal utility theory, thus, overcame another problem inherent in a labor theory of value: that every factor of production—labor, land, entrepreneurship—required a different theory to explain how its price was set.

Now, what bearing does all of this have on comparable worth? Comparable worth shares with the labor theory of value a desire to discern some objective characteristic of worth or value apart from the valuations of actual buyers. For comparable worth it is no longer the hours of labor embodied in a thing which sets its value, but rather that the value of labor itself can be determined by assessing the knowledge and skills, mental demands, accountability, and working conditions that characterize each job. But there is no intrinsic value to any job. A job has value to someone who creates it and is willing to pay someone to do it. The price for that job is set by the market, which is nothing more than an arena for averaging the demands for labor of each particular kind by numerous employers. It is an impersonal process. In most cases, employers and potential employees do not know each other before the process is begun. It is impersonal in another way, also. No individual employer can exercise much influence over the price of labor of the kind he needs. Only in the rarest of cases, where no alternative employers are available to willing workers, will any one employer have an impact on the overall job market. (Such influence characterizes centrally planned and government owned economies much more than it does market economies.)

If an employer, through discriminatory motivation or any other reason, wishes to pay less than the prevailing wage for a certain kind of labor, one of three things will normally happen: he will get no takers; he will get fewer takers than he needs; the quality of the applicant pool will be lower than the job requires. On the contrary, if he wishes to pay more, he will get many applicants and some of them will be of higher quality than normal in that job classification. In the former case, the employer jeopardizes his business by presumably making his products less marketable and his operation less efficient; in the latter case, the employer may benefit his business if his more skilled employees produce a better product that the consumers are willing to pay a higher price to acquire, but the consumer may not be willing, and then the business would be jeopardized. Thus, employers are, in the normal case, pretty much tied to paying prevailing market wages.

If jobs have no intrinsic worth, as I have argued, then the comparable worth position has been severely wounded, for it bases its case on precisely such an assumption. All commodities, labor included, are worth what buyers are willing to pay for them and what sellers are willing to take in order to part with them. Furthermore, if jobs have no intrinsic worth, they cannot be compared on any objective scale. In fact, we cannot even say that a plumber who makes $10 an hour is worth the same to his boss as a teacher who earns the same wage is worth to his employer. Such comparisons are vacuous. I am not even convinced that a comparison of worth based on differences in salary can be made within the same firm or that any correlation exists between use value (utility) and salary. Firm X may desperately need an efficiency expert and be willing to pay $100,000 per year for one, but if efficiency experts are plentiful, firm X may only have to pay $20,000. The use value (or utility) to firm X of the efficiency expert does not seem to correlate with his salary. Value and worth are moral terms which do not seem to equate all that well with price or salary which are economic terms and depend on the available supply and the demand for particular labor. Who is to say that Michael Jackson is worth thousands of times more than an emergency room nurse because he earns several million dollars each year and the nurse earns a pittance? The question doesn’t make any sense.

The problem with comparable worth is similar to the problem of making interpersonal comparisons of utility. While each person can order his own preferences, these separate preference orders cannot be equated. Similarly, different jobs cannot be equated on any objective scale. Even the market cannot equate the worth of one job with another.

Thus, any attempt to employ supposedly objective job-assessment criteria must be inherently discretionary; the judgments of bureaucrats would be forcibly substituted for the assessments of those who are the actual purchasers of labor services. It is unavoidable since there is no intrinsic value to any job. The impersonal forces of the market would have to be replaced by subjective judgments of “experts” regarding the value of different jobs. Even if these “experts” were bereft of all tastes—which is, of course, impossible—they could not implement a system of objective measurement. We all have tastes, and it has been observed by other critics of comparable worth that its advocates tend to staff the consulting firms and oversee the studies. But the problem with comparable worth, as I have argued, lies deeper than that. There is no intrinsic value to any job, and hence they cannot be measured or compared.

Comparable Worth and the Market

Most proponents of comparable worth argue that comparable worth is not an alternative to the market, that it is like other correctives to the market that have been instituted by government in recent years. I will contend that this is false. Comparable worth, unlike the Equal Pay Act, Title VII, or affirmative action, cannot be grafted onto the market. Rather, the market and comparable worth emanate from two entirely different normative assessments about individual action. The market exemplifies the assumption that individual consumers ought to be sovereign, that there desires ought to rule the economy. Comparable worth assumes that individuals ought not be the final arbiters of economic life. Some individuals, rather, should place their judgments above those of the rest of their countrymen. These “experts” will insure that wage decisions are made on equitable, nonprejudicial grounds.

The Equal Pay act said to employers that you cannot pay women less than you pay men for the same job. Title VII of the Civil Rights Act of 1964 said to employers that you cannot discriminate in hiring, promotion, compensation, etc., between men and women. And affirmative action said to employers that you must try to advance women, as historic victims of discrimination, to positions in which they had been under-represented. All of these mandates interfered with employers’ rights. All limited employers’ freedom. Formerly, an employer could hire women if he liked, pay whatever he liked, and use any criteria for hiring that he wished.9

But comparable worth is different. Instead of employers determining their wage scales by evaluating their demand for a certain type of labor and the supply of it on the market, “expert” boards would have to examine the jobs in each firm or government bureau and set wage-scales according to the comparability of different jobs. While most comparable worth advocates do not envision one wage board doing this for the entire country—as the National War Labor Board tried to during World War II10—it is obvious that some national standards would have to evolve, either by legislative decree or judicial interpretation. Even if there were many boards rather than one, this would still prove problematical on several grounds, in addition to the ones previously adumbrated in the sub-section on intrinsic worth.

The very reason for having “expert” boards to assess jobs rather than the market is to eliminate subjectivity and, thus, prejudice. But can the boards accomplish this? I think not. All people have prejudices, and if that is too harsh a term, all have tastes. Consulting firms have proven more sympathetic to white-collar than blue-collar jobs in their comparable worth studies. This is not surprising. What is to insure that a board acts impartially? (I do not wish to concede, here, that such would be a theoretical possibility.) Will we need another board to assess the fairness of the first, and yet another to judge the fairness of the second? We seem to be caught in an infinite regress situation.

Furthermore, the institution of a comparable worth scheme nationwide would depend not only on a universal standard and pay boards but, more problematically, on a static view of the economy. Let us suppose that comparable worth were put into effect and operated at time T1 to the satisfaction of its supporters. What would immediately happen at time T2? A myriad of events would occur to upset the carefully crafted design. Consumer choices, preferences for jobs, availability of resources, etc., would change. This indicates that the comparable worth wage boards would have to be a permanent fixture of our economy. As soon as “pay equity” were achieved, it would be upset in the next instant. Thus, the pay boards would have to constantly disrupt the economy, causing massive uncertainty, instability, and the impossibility of any rational planning on the part of businesses, workers, or consumers. The only way out of this bind would be an attempt to freeze the economy. But of course, this is impossible. Thus, comparable worth cannot be operationalized. As Robert Nozick pointed out, any attempt to impose one pattern of distribution as the just pattern, must require perpetual interferences with human freedom of action.11

Thus, the market and comparable worth seem to be mutually exclusive. Either we have market-set wages or we have wages set by administrative boards and courts. The former has the advantage, since it works. The latter has the fault that it cannot be operationalized without producing chaos.

Discrimination

Comparable worth proponents believe that the market for women’s work has been distorted by centuries of prejudice. The market devalues the work of women, and hence it should be supplanted. The work of June O’Neil seems pretty compelling, and it shows that the market for women’s labor operates just like other markets. But leaving this aside, there is something else fundamentally flawed about this line of argument.

Comparable worth cannot eliminate discrimination from the labor market, and neither can any other scheme, including the market. The purpose of any hiring process is precisely to discriminate. It is not only skills that a personnel director looks for in hiring an applicant. Such intangibles as personality, looks, motivation, etc., play a factor. Just as any employer discriminates in hiring, so the wage boards or the consulting firms would impose their tastes and value judgments.

One kind of discrimination that is invidious is government-imposed discrimination. Apartheid is an excellent example. What makes this kind of discrimination so odious is that it is government imposed, and hence nearly inescapable. Discrimination on the market is haphazard and usually escapable. If you don’t like the wages or the conditions in one firm you can join another or start your own. The comparable worth consulting firms, and what I see as the inevitable wage boards, court appointed masters, or judicial “wage boards” denote more the apartheid model and less the market kind of discrimination. The standards would be government mandated and inescapable except by leaving the country.

If discrimination is irremediable, why should we prefer comparable worth to the market, with all of the problems attendant upon comparable worth that I have already documented?

Equality of Opportunity vs. Equality of Results

The market as it currently operates in the United States embodies a conception of equality that political theorists call equality of opportunity. All positions in society ought to be open to everyone, without any artificial barriers of race, nationality, sex, etc., being placed in anyone’s way. Where the actual world departs from this model, government intervenes to guarantee the rights of those who have been discriminated against. While equality of opportunity has its problems—it interferes with personal freedom—it is preferable to the view of equality embodied in the comparable worth position.

Equality of results, or some looser variant of it, seems to be the vision embraced by comparable worth’s adherents. As I have argued earlier, the attempt to operationalize such a principle (as Nozick argued) is doomed to failure. Life will always intervene to upset the carefully balanced apple cart. Even if this were not so, I do not think that equality of results is an appealing moral objective. It is contrary to our American tradition, going back to Locke and the natural law theorists, of treating each person as an individual. Equality of results demands that each person be treated as a component of an organic society; the parts must be rewarded so that the entire organism will be just. But this is merely an historical argument about Western traditions, and is not in itself compelling. However, it is based upon a realization that individuals are different—they have disparate talents, needs, desires, and tastes. These differences cannot be denied. Any attempt to fit such heterogenous beings into one scheme to judge “worth,” would involve a massive amount of paternalism. If individuals freely hiring on the market and individuals freely offering their services, determine that dogcatchers are “worth” more than nurses, and the board thinks otherwise, then the wishes of countless employers and workers will be ignored.

Equality of opportunity is more appealing than equality of results because it gives more respect to the wishes of individuals, and it just attempts to guarantee that the process of selection is fair. It does not require making independent assessments of the value to society or to a firm of the work of baseball players, laundresses, plumbers, or secretaries. It leaves such decision to the marketplace.

I have argued that several of the key assumptions upon which the case for comparable worth lies are fallacious or cannot be operationalized without producing chaos. (1) Jobs have no intrinsic worth or value, and, therefore, they cannot be objectively measured nor compared. (2) Comparable worth operates on principles that are antithetical to the market. Thus, one must choose either the market or comparable worth. (3) Discrimination is irremediable, and it cannot be eliminated by comparable worth schemes. In fact, comparable worth if implemented might exacerbate the problem of discrimination by replacing the choices of millions of individuals by the views of “experts.” (4) Finally, equality of opportunity is preferable on many grounds to the alternative embodied in comparable worth—equality of results.

Why the Market is Appealing

Markets are impersonal. If secretaries and nurses on average receive lower salaries than accountants and auto mechanics, it is not because any one group of experts has determined that the latter are more worthy than the former. It is simply a function of supply and demand. While individual employers may operate their businesses as idiosyncratically as they like (within, of course, the current labor and civil rights laws of the United States), they follow discriminatory wage policies at their peril. If fewer women choose to become nurses and secretaries, these occupations will receive higher remuneration in the future.

Markets express consumer sovereignty. Employers are consumers of labor, but they are also intermediaries between the ultimate consumers of their products and their laborers. Employers produce goods by combining various factors of production, and they hope that these goods will mesh with what consumers want. They do so as efficiently as their competitors or else they are soon out of business. Thus, comparable worth is not simply an attempt to replace the decisions of employers with the decisions of wage boards. Comparable worth seeks ultimately to replace the decisions of consumers themselves with the judgments of “experts.”

Markets are efficient. In contrast to centrally planned economies which have proven notoriously inefficient, market systems produce bounties undreamt of in past centuries. Comparable worth seems to require wage boards, and with all the constant disruptions and inefficiencies such boards would cause, a movement to explicit central planning of the economy would be the logical next step. Something would have to provide a “cure” for the dislocations caused by continuous comparable worth evaluations by boards, and since the market is out, central planning seems inevitable.

Markets are just. In a market system, everyone is free to produce what he likes, to trade with other willing partners, and to give or bequeath his wealth to anyone he chooses. It is based on a simple and just principle—that those who produce are entitled to the products of their labor. Comparable worth would deprive employers of the right to freely dispose of their holdings. It would give that right either to consulting firms, boards, or judges.

Markets allow freedom of exit and entry. If an individual does not like the terms of employment offered to him, if he thinks the proffered wage is too low, he (and, of course, she) is perfectly free to seek another employer or strike out on his own. No one is perpetually tied to a job, as has been the practice off and on in some centrally planned economies. If one feels that as a secretary one is being discriminated against in relation to office managers, one can acquire new skills and become an office manager or go into a different occupation.

The Market and Women

Why should the market system appeal to women? The market has proven remarkably adaptable to the huge influx of women into the workplace in the last few decades. In 1960 only 38 percent of women worked, while 1983 saw an increase to 53 percent.12 Many of these women were formerly homemakers with minimal job skills. Employment opportunities have multiplied to meet this rising demand by women for work outside of the home. With relatively little dislocation, the market has expanded to provide jobs for women who now want to or need to work. Also, as aspirations of women have changed in the last fifteen years, as a result in no small part to the women’s movement, women pioneers entered formerly male professions. Today, the pioneering phase is over, and it is no longer cause for discussion or even much notice when a woman is a lawyer, doctor, politician, business executive, coal miner, or truck driver.

We ought not dwell upon the past. If women of another generation wanted to remain at home with their children, it is foolish to blame “society” for the results. For society is nothing more than the attitudes and expectations of men and women who inhabit it at any particular time. If men formerly saw women primarily as homemakers, so did women. Today, it is not only the attitudes of women that have changed, but the perception of women by men. It does not require any elaborate empirical study to observe that younger men hold vastly different expectations of women, and their wives, than did their fathers and grandfathers.

Rather than bemoaning “societal” values of past generations, or seeking an unattainable goal of eliminating all discrimination, or trying to overturn our market system, women ought to encourage each other to become prepared for better jobs and to take risks by becoming entrepreneurs. Comparable worth is a detour that will not aid women, and if fully implemented it will destroy our market system and all the abundance it produces.

Notes

1. County of Washington v. Gunther, 452 U.S. 161 (1981). While Gunther gave hope to comparable worth proponents, it was not an endorsement of the concept, nor was it a clear signal that comparable worth claims would fall under Title VII. The decision sets no criteria for what claims in addition to “equal pay for equal work” might fall under Title VII. It is certainly not a decision that sets definitive standards, as the dissenters pointed out. However, the majority at several points in the decision disclaimed any relation of their decision to the comparable worth theory. For example, at 757: “We emphasize at the outset the narrowness of the question before us in this case. Respondents’ claim is not based on the controversial concept of “comparable worth.…” For comments on the meaning and impact of Gunther see: Comment, “Civil Rights-Employment Discrimination-Sex Based Compensation Discrimination,” 28 New York Law School Law Review 149 (1983); Janice R. Bellace, “Comparable Worth: Proving Sex-Based Wage Discrimination,” 69 Iowa Law Review 655 (1984); Judith Anne Pauley, “The Exception Swallows the Rule: Market Conditions as a ‘Factor Other than Sex’ in Title VII Disparate Impact Litigation,” 86 West Virginia Law Review 165 (1983); Charles Waldauer, “The Non Comparability of the ‘Comparable Worth’ Doctrine: An Inappropriate Standard for Determining Sex Discrimination in Pay,” 3 Population Research and Policy Review 141 (1984); Sndra Hard, Paula Murray, and Bill Shaw, “Comparable Worth: A Legal and Ethical Analysis,” 2 American Business Law Journal 417 (1984).

2. American Federation of State, County, and Municipal Employees v. State of Washington, 578 F. Supp. 846 (1983). Many court decisions, however have been unsympathetic to comparable worth pleas, both prior to and since Gunther. Among these are: Lemons v. City and County of Denver, 17 FEP cases 906 (D. Col. 1978), affirmed 620 P. 2d 228 (10th dr.), cert, denied, 449 US. 883 (1980); Christensen v. State of Iowa, 563 F. 2d 353 (8th Cir. 1977); Power v. Barry County, 539 F. Supp. 721 (W.D. Mich. 1982); Spaulding v. University of Washington, 35 FEP cases 217 9th Cir. 1984), affirming 35 FEP cases 168 (W.D. Wash. 1981); Plemer v. Parsons-Gilbane, 713 F. 2d 1127 (CA 5, 1983); Connecticut State Employees Association v. State of Connecticut, 31 FEP Cases 191 (D. Conn. 1983); EEOC v. Affiliated Foods, Inc., 34 FEP Cases 943 (W.D. Miss. 1984). In this last case, the court pointed to the Supreme Court’s disclaimer in Gunther that “Respondents’ claim is not based on the controversial concept of ‘comparable worth’” (at 958).

3. American Federation of State, County, and Municipal Employees v. State of Washington, 770 F. 2d 1401 (1985). Despite the appeals court’s ruling, the state of Washington settled with the union, granting women employees nearly $500 million in compensatory salary increases by 1992.

4. Who’s Working for Working Women, National Committee on Pay Equity and the National Women’s Political Caucus, 1984.

5. Joy Ann Grune, “Pay Equity is a Necessary Remedy for Wage Discrimination,” in Comparable Worth: Issues for the 80s, A Consultation of the U.S. Commission on Civil Rights, June 6-7, 1984, p. 165.

6. AFSCME v. Washington, supra note 2, at 854 n. 9. Discrimination,” in Comparable Worth: Issues for the 80s.

7. June O’Neil. “Comparable Worth: An Interview with June O’Neil,” Manhattan Report on Comparable Worth, Vol. IV. no. 4, 1984; idem, “An Argument Against Comparable Worth,” in Comparable Worth: Issues for the 80s, pp. 177-180.

8. Daniel Leach, Comparable Worth: Issues for the 80s, p. 92.

9. I do not intend to ignore the Wagner Act and minimum wage laws which had already greatly circumscribed employers’ latitude in compensating employees.

10. See: County of Washington v. Gunther, at 185 n.l., Rehnquist dissent.

11. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), Part II.

12. The Female-Male Earnings Gap: A Review of Employment and Earnings Issues, Women’s Bureau, Office of the Secretary, U.S. Dept. of Labor, Report No. 673 (1982).