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“Federal legislation is not needed”: Debating the Equal Pay Act of 1963

Recommendations by the National War Labor Board during World War II to pay male and female workers equal wages yielded few changes in the gender wage gap. Women continued to receive less money for comparable work, and into the 1960s want ads characterized jobs as “male” or “female” with resulting salary differences based on gender. The Equal Pay Act (EPA) made it illegal to pay men and women differently for similar work. Although the EPA was passed in 1963, it was debated in workplaces and courtrooms for decades thereafter. In this statement submitted to the Senate hearing on the EPA, the National Retail Merchant Association (NRMA), an organization representing retail employers, claimed that the legislation was unnecessary, expensive, and impossible to enforce. While professing that equal pay for women was “an admirable principle,” the NRMA also argued that high rates of absenteeism and protective legislation made women more expensive to employ than men.

Prepared Statement of the National Retail Merchant Association

The National Retail Merchants Association is a voluntary trade organization serving more than 10,500 retail department and specialty stores, both large and small, throughout the Nation. The combined annual sales volume of members is estimated to be more than 19 billion, and the total individuals employed by such member stores approximates 800,000. Its members have a vital interest in proposed legislation relating to equal pay for equal work for women. We appreciate this opportunity to present our views on this legislation which is presently being considered by the subcommittee.

The principle of equal pay for equal work is one which almost any citizen would strongly support. However, the average citizen is unaware of the complexities in administering and enforcing a Federal law embodying this principle. The equal pay issue is one which is charged with emotion. Extreme care must be taken to assure that the issue is considered factually in the merits and not emotionally.

The NRMA wholeheartedly and enthusiastically supports the principle of equal pay for equal work. However, we oppose Federal legislation in this field for the following reasons:

(1) Federal legislation in this area is not needed.

(2) The added enforcement cost is unnecessary.

(3) Legislation which is fair and equitable to both employers and employees must necessarily be confusing, complex, and virtually unenforceable.

1. Federal legislation is not needed

We seriously question the need for Federal legislation in the field of equal pay for equal work at the present time. Twenty-one States have already adopted equal pay laws. In addition, many collective bargaining agreements covering thousands of workers contain equal pay clauses and others are being negotiated each day. Many employers located in States without equal pay laws and not covered by union contracts have voluntarily established the equal pay principle as a part of their personnel policies.

2. Added enforcement cost is unnecessary

In view of the rapidly increasing trend toward the establishment of the equal pay principle throughout our economy, the passage of Federal legislation in this area will add in unnecessary additional Federal bureaucracy which according to Government estimates will cost over $1 million annually to administer and would create over 240 new Federal jobs. State action and voluntary employer activity have done an excellent job in the area of equal pay to date, and we believe that such activity will proceed at an even faster pace in the future. Furthermore, Federal legislation would impose a dual set of standards on employers in those States which already have equal pay laws or are operating under collective bargaining agreements.

3. Cost factors outside of job content

Equal pay for work of equal value by women while an admirable principle is difficult to achieve by legislation. This is so because of the many cost factors outside of actual job content which are involved in employing women as opposed to men, and in evaluating their true payroll cost to the employer.

Legislation which is fair and equitable both to employees and employers must take into consideration these other cost factors. This would necessarily result in a cumbersome, confusing, and virtually unenforceable law. Some of these factors are:

(a) Greater absenteeism for women.—A recent industrial study of absenteeism indicated that the rate of time lost due to absenteeism is much higher for women than for men workers. This higher rate of absenteeism for women increased the cost to employers of employing women.

(b) Special protection under State laws for women.—Laws now in almost every State require varying degrees of additional protection for women workers. These laws restrict the number of hours women may work in a day and/or week; provide for longer meal and rest periods for women than for men; restrict or prohibit night work for women; restrict the type of work women may do and the physical location in which they may work; require additional facilities such as seats, lunchroooms, and toilet rooms for women.

While these laws are meritorious, they add considerably to the cost of employers employing women as contrasted to men.

4. Proposed legislation

We have carefully reviewed the proposed equal pay laws pending before this subcommittee. As we have stated, we do not believe that Federal legislation in this area is either necessary or feasible. However, we recognize that the eventual attitude of Congress toward such legislation may be at variance to our own. Therefore, we strongly urge that if such legislation is enacted that the following recommendations be included in such legislation:

(1) Some of the proposed bills pending before this committee provide that differences in pay for men and women may be based on seniority, merit, and job duties. We believe that any legislation adopted should specifically permit pay differentials where such differentials are attributable to ascertainable and specific added costs resulting from employment of the opposite sex, or where such differentials are attributable to other reasonable differentiation based on a factor or factors other than sex.

(2) The investigatory authority of the Secretary of Labor should be limited specifically to cases in which a written charge under oath has been filed by an aggrieved party. Further, the investigatory and subpoena powers of the Secretary should be limited to facts and conditions specified in and directly related to such charges. This will prevent the indiscriminate use of investigatory and subpena powers by the Secretary.

(3) The law should provide that subsequent to the filing of a written charge, the Secretary, if he has reasonable cause to believe a violation has been committed shall advise the employer in writing of the charge and afford the employer the opportunity to reply. If after reply, the Secretary still believes the charge to be valid, he should then have the power to commence a civil suit in the U.S. district court.

This will prevent the Secretary from being both prosecutor and judge and will vest the courts with the power to decide the issue, rather than permit the Secretary to initially decide the issues upon a hearing.

(4) The statute of limitations on violations should be limited to 6 months rather than 1 year or 2 years.

(5) For violations damages should be limited to back pay plus 6 percent interest, rather than double or triple damages as proposed in some of the bills before the committee.

5. Conclusion

We oppose Federal legislation requiring equal pay for equal work on the grounds that Federal legislation is not needed, that the added cost to administer such a law is unnecessary, and that an equitable law would be complex, confusing, and difficult to enforce.

In the event such legislation is adopted, we strongly urge that our recommendations set forth herein be incorporated in any bill adopted.

Source: Hearings on Amending the Equal Pay Act of 1963, Subcommittee on Labor, Committee on Labor and Public Welfare, United State Senate, 88th Congress, 1st session, April 2, 3, and 16, 1963 (Washington D.C.: Government Printing Office, 1963). Printed for the use of the Committee on Labor and Public Welfare.