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Oregon’s Equal Pay Law Encourages Systemic Discrimination: Part 3 of 6

January 25, 2019

Overview

Oregon’s pay equity law allows society’s systemic discrimination to infiltrate the workplace.  It allows employers to pay employees performing comparable work different compensation provided the difference is based on a seniority, merit or productivity system, education, travel, workplace locations, training, experience, or a combination of the above.  This allows employers to justify what might be society’s systemic discrimination. These justifications should be eliminated and replaced with bona fide factors that are not systemically biased.

For example, if an employer pays teachers with master’s degrees more than teachers with bachelor’s degrees, and fewer minority teachers have master’s degrees due to lack of access to education caused by systemic racism in society, Oregon’s law allows the employer to carry that racism into the workplace and justify its continuation by paying teachers with less education less compensation. 

And perhaps women take fewer jobs that require extensive travel to be closer to children or ailing parents because society has placed on them greater responsibility for family.  The employer that pays people who do not travel less than those who do can justify its pay differentials even if they result in gender discrimination. 

Basing pay differentials on experience and seniority may also work against women who may take more time away from the workforce to care for family due to society’s gender-biased system.  The discrimination is so deeply woven into society, the Oregon law does not even question it and allows employers to justify ongoing discrimination based on it. 

A disabled person in a wheelchair may be less likely to work in jobs that require extensive travel or in remote workplace locations where pay may be higher.  Paying workers more who engage in these jobs may inadvertently discriminate against the disabled, but such discrimination is justified under Oregon’s law. 

Oregon’s law is a pay equity law.  It is not an anti-discrimination law.  As such, it should give an extra boost to protected classes so that they can achieve parity in pay.   Therefore, the only bases that can justify pay disparities are those that have to do with job performance, market demands, government contract requirements, skills, knowledge, and similar factors that deal with who the employee is in the here and now, not where he or she came from. 

A teacher with a bachelor’s degree may have greater knowledge and skill than the teacher with a master’s.   The employee with the most seniority may be a mediocre performer.  The employee who gets hired as a bricklayer in a building boom was lucky enough to garner an uncommonly high wage due to low unemployment.  These justifiable bases for paying workers differently have nothing to do with the color of their skin, what country they came from, their gender, or disability. 

The employer that pays more to workers with superior skills or knowledge is not allowing systemic discrimination to be carried into the workforce.  The same is true of the employer who pays more to workers lucky enough to get hired in a market boom.  That has nothing to do with these workers’ historic place in society.  Rather, these factors focus on the here and now and what the employee brings to the job at hand.      

These factors may be more subjective.  But as a society, few set out to discriminate against others.  Creating a statute that encourages focusing on what the employee brings to the job at hand will help eliminate systemic bias and focus employers on the factors that impact job performance and business needs.    

One article in a six-part series on BOLI’S Equal Pay Act.

Part 1 of 6: Oregon Legislature Should Fix BOLI’s Unfair Pay Equity Rules

Part 2 of 6: Oregon’s Pay Equity Law Encourages Invasions of Privacy

Part 4 of 6: Oregon's Equal Pay Law Should Allow Employers to Accommodate Injured Workers

Part 5 of 6: Oregon’s Pay Equity Law Should Allow Employers to Pay a Travel Incentive

Part 6 of 6: Oregon’s Pay Equity Law Must Allow Employers to Pay Different Rates Where Specified by a Government Contract

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