In 1913, the American Association of University Women published its first study on equal pay in the workplace.

More than 100 years later, members of the advocacy organization are still fighting the same battle.

“Obviously, we are not easily deterred,” Barbara Price, co-chair of public policy for AAUW’s Pennsylvania chapter, said on April 8.

Price was addressing about a dozen people inside a Capitol conference room who spent much of that day lobbying legislators in Harrisburg to advance legislation that would update the state’s Equal Pay Act, which was last amended in 1967.

Advocates say the current law provides weak protections against discrimination that allows for a wage gap between men and women to persist. According to an analysis of census data by the AAUW, a Pennsylvania man earned a median annual income of $52,111 in 2017, compared to $41,929 for a woman. The disparity is much wider for black and Latinx women.

Critics fault this metric, because it lumps full-time, year-round workers of all ages and professions together.

When researchers control for factors like type of employment, the disparity narrows. But “an unexplained gap remains,” Cornell University economists Francine Blau and Lawrence Kahn wrote in a 2017 paper. Possible explanations include discrimination and the so-called “motherhood penalty.”

And while advocates acknowledge that these issues can’t be solved solely through legislation, they contend Pennsylvania has a lot of room for improvement.

Checking all the boxes

Groups like the AAUW and the Women’s Law Project, a public interest legal center based in Philadelphia and Pittsburgh, are calling for changes including banning salary history questions during the interview process. College-educated women are paid seven percent less than men in comparable positions just one year post-graduation, according to an AAUW analysis — a gap that persists if an employer uses that lower wage to make a salary decision.

Last year, Gov. Tom Wolf  signed an executive order that banned the question for agencies under his purview, affecting about 13,000 positions.

But the Democrat, recognizing the scope of the issue, also backed several bills in the Legislature — bills that ultimately went nowhere.

On April 8, First Lady Frances Wolf met with advocates in a Capitol conference room to say her husband’s administration is “not behind you but with you.” The first lady has held roundtables on equal pay with business leaders and advocates.

AAUW’s Price said five bills have been introduced in the House and Senate, with another forthcoming from Southeast Democratic Sens. Maria Collett and Steve Santarsiero.

But just one proposal represents the Holy Grail for equal pay advocates: House Bill 850.

EQUAL PAY: Closing out today’s Equal Pay rally to demand that my male colleagues step up and demand #equalpaypa with the women that rallied at the capitol today! Next year we should be celebrating equal pay, and not demanding it! Support #HB850! #EqualPayNOW pic.twitter.com/nkNWHycfpF

— Brian Sims (@BrianSimsPA) April 8, 2019

The legislation, introduced by Democratic Reps. Brian Sims, of Philadelphia, and Tina Davis, of Bucks County, would ban salary history questions and cover all employees — no longer providing a carve-out for workers covered by the federal Fair Labor Standards Act.

The bill would also require that employer defenses, or the reasons employers give for setting a salary, are job-related, not sex-based.

At the moment, Pennsylvania law bans workplace discrimination based on sex, but advocates say that doesn’t include sex-inclusive factors like salary history.

“It’s one of the central fixes we need to accomplish with this act,” Terry Fromson, managing attorney with the Women’s Law Project, said during the meeting with the first lady.

The bill is now before the House Labor & Industry Committee. Its chair, Rep. Jim Cox, R-Berks, did not respond to multiple requests for comment.

Whether cities and states can legally ban employer questions about prior wages is a matter of dispute.

In 2017, Philadelphia City Council passed an ordinance that banned private employers from asking about salary history.

The Chamber of Commerce for Greater Philadelphia, along with several businesses, sued the city and won, with U.S. District Judge Mitchell S. Goldberg finding last year the law violated a company’s First Amendment right to ask the question. But Goldberg also ruled that companies cannot use pay history to make salary decisions.

Both parties appealed the ruling, which could ultimately set precedent in the U.S. Supreme Court.

More than pay

Lawmakers and advocates held a rally in the Capitol rotunda on April 8, less than a week after Equal Pay Day — an April 2 holiday that marked how long into 2019 a woman had to work to make what a man did in the previous year.

Davis said she posted about the occasion on Facebook and was inundated with comments from men about how the pay gap is a myth.

https://www.facebook.com/RepTinaDavis/posts/2713708091978088

To be clear — it isn’t.

And while the wage gap has narrowed in the U.S. over the past few decades as women have obtained education levels equal to men, researchers are still trying to figure out exactly why it remains.

A leading theory involves the “motherhood penalty,” or the pay hit a woman takes after having a child.

Researchers, including preeminent wage gap scholar Claudia Goldin of Harvard, found, “The average male college graduate by his early forties earns roughly 55 percent more than the average college graduate female.”

Goldin has long argued that women’s desire for flexibility in the workplace, rather than outright discrimination, can explain much of the wage gap. A working paper released earlier this year by two Harvard Ph.D. economics candidates backs that idea up.

The paper found that female unionized bus and train operators in the greater Boston area make .89 cents to a male colleague’s dollar. “Women value time away from work and flexibility more than men, taking more unpaid time off using the Family Medical Leave Act (FMLA) and working fewer overtime hours than men,” the researchers wrote.

The Wall Street Journal editorial board summarized the findings this way: “A new study suggests choices, not sexism, explain wage disparities.”

But the word “choice” can be misleading in this context.

Amal Bass, an attorney with the Women’s Law Project, said Pennsylvania is in desperate need of a law that specifically states that employers have an obligation to provide reasonable accommodations for pregnant women. That could include allowing a woman to sit or excusing her from heavy lifting for a limited period of time.

Pregnancy discrimination is a prohibited under Title VII of the federal Civil Rights Act and the Pennsylvania Human Relations Act. But those laws only apply to workplaces with a certain number of workers and require the employee to prove a similar accommodation was provided for another worker with a temporary disability — a high barrier, Bass said.

If a woman doesn’t get a needed accommodation, she can exhaust her 12 weeks of guaranteed — but unpaid — leave under the Federal Medical Leave Act before the baby is even born. Bass said this time away from the workplace can affect the rest of a woman’s working life.

Once a woman gives birth and returns to work, she may need a safe, private place to express breast milk. In that arena, too, Pennsylvania’s laws falls short, the Women’s Law Project says.

Pennsylvania’s Freedom to Breastfeed Act says that a woman may breastfeed in any location where she is authorized to be. But there’s no state law on the books that requires all employers to provide a private place to express milk.

“That’s another way our … policies make it more difficult to stay in the workplace,” said Margaret Zhang, another attorney with the Women’s Law Project.

Rep. Mary Jo Daley, D-Montgomery, has again introduced a breastfeeding bill that would apply to all Pennsylvania employees, while Rep. Sheryl Delozier, R-Cumberland, plans to reintroduce legislation that would provide workplace accommodations for pregnant women.

In the interim, the Women’s Law Project is available to field inquires from pregnant people who are unsure whether or not they are able to request an accommodation. Zhang also educates obstetricians who care for pregnant women about the best way to write a request for an accommodation — namely, as narrowly as possible and with an acknowledgement that the woman is still able to work.

Even if Pennsylvania finally strengthens protections for working moms and — in what’s an even bigger stretch —creates a Paid Family and Medical Leave Insurance Fund, it likely won’t be enough to close the wage gap.

As Bass noted, paid family leave would be a policy that wouldn’t just affect women who are culturally considered caregivers — it would help men, too, if the responsibilities are split evenly.

“Legal tools can only go so far,” Zhang said.