August 20, 2005

Justice Roberts and "Comparable Worth"

Hugh Hewitt has organized bloggers to analyze and post about the documents from Justice Roberts's tenure as an Associate White House Counsel under President Reagan. Here's a discussion of his writing on "comparable worth."

“Comparable worth” is a long-abandoned feminist concept.

Prediction: It will be revived as a club to box Justice Roberts about the ears.

The concept was that women aren't paid as much for doing traditionally female jobs as men are for doing traditionally male jobs that have just as much “worth.” Failure to correct this disparity, went the argument, is unlawful discrimination.

In a market economy, of course, it is the impersonal working of the market that determines what one worker or another is worth. Thus a writer like J.K.Rowling, author of the Harry Potter series, makes more money than a “serious” writer like Joyce Carol Oates; Britney Spears makes more money than many a highly-trained opera singer; and my legal assistant in California, makes more than my son-in-law, a very erudite Ph.D art historian in a Texas university.

In the world of feminism 20 years ago, when such disparities supposedly reigned between predominantly male occupations and traditionally female ones, “comparable worth” was the notion that the disparity could and should be corrected by a three-step process:
  1. Experts would determine the relative worth of different occupations through “objective” criteria.

  2. Legislators would enact anti-discrimination measures to insure equal pay for jobs of “comparable worth.”

  3. Courts would decide whether the law was properly applied, and if not, order that certain workers be paid more, and assess damages against employers.
This particular box contains only a decision by Judge Jack E. Tanner of Tacoma, Washington.

The State of Washington had made the mistake of commissioning studies by social “scientists” of the comparable worth of various civil service jobs. Not surprisingly, the studies had concluded that based on their criteria (things like physical effort and training required), predominantly female civil servants were underpaid compared to male ones.

Unwilling to cut anyone's pay, and faced with a depressed economy and budget constraints, Washington didn't implement the recommended increases. The public employee union sued. Judge Tanner ruled in their favor, holding that the Civil Rights Act of 1964 forabde not only “disparate treatment” (paying men in the same job more than women), but “disparate impact” (adopting policies that were neutral on their face but affected men and women differently).

Nothwithstanding the bad economy and the budget constraints, Judge Tanner ordered the State to make up the pay differences and proposed to appoing a Special Master to decide what employees would receive the court-mandated wage increases.

That's what's in this box. For those to whom such things matter, the case citation is American Federation v. State of Washington (1983) 578 F.Supp. 846.

It's hard to understand what this all has to do with the confirmation battle without looking into the next two boxes. At the time, Justice Roberts was a lawyer working in the bowels of the White House. It was obvious that the case was going up on appeal. The question was, what would the federal government do—stay out of the case, or make its views known before the Ninth Circuit Court of Appeals, for one side or the other.

Three liberal republican congresswomen, including Connecticut's Nancy Johnson and Maine's Olympia Snowe, wrote to President Reagan in favor of comparable worth.

Lawyer Roberts was asked to comment, and as well-trained young lawyers do, he summarized the legal arguments on both sides succintly and in clearer prose than I've written here.

Even though “comparable worth” has largely been abandoned as an issue, even by feminists, Justice Roberts is likely to come under fire for his criticism of Judge Tanner's decision and the concept of comparable worth. As he points out, to put in judges' hands decisions that are made in the marketplace, or in the case of civil service pay, by the Legislatures (and lately, in collective bargaining), is inconsistent with a capitalist economy. It would amount to judicially managed socialism.

(This is less of a stretch than one would think. Court-appointed special masters have managed prisons, and have ordered legislatures how much to spend on public schools as recently in Kansas, etcetera etcetera and so forth).

In the event, it appears that the Justice Department did not intervene on either side, and in a burst of sanity, the Ninth Circuit reversed Judge Tanner. The citation is American Federation v. State of Washington (1985) 770 F.2d 1401. Two points in that decision are worthy of note:
  1. ”Disparate impact” analysis does not apply to broad policy decisions, only to decisions made as specific points in the employment process (like height requirements that might exclude women or Asians).

  2. States should not be bound by the results of employment studies they commission, because the effect would be to discourage them from making such studies.
The Ninth Circuit specifically held that
“[N]othing in the language of Title VII or its legislative history . . . abrogate[s] fundamental economic principles such as th laws of supply and demand or . . . prevent[s] employers from competing in the labor market.
”While the Washington legislature may have the discretion to enact a comparable woth plan if it chooses to do so, Title VII does not obligate it to eliminate an economic inequality which it did not create.”
This ruling was a paroxysm of common sense.

So not only was Justice Roberts right, the generally liberal Ninth Circuit agreed with him, and apparently that ended the matter.

Nevertheless, and in spite of the fact that comparable worth is no longer a live concept, this discussion is likely to be held up as proof that Justice Roberts is anti-woman, a mad right-winger, and out of the mainstream.

As we have seen, these documents prove no such thing. All they show is that he's a good legal writer and has a modicum of common sense.

UPDATE: Comparable Worth Boxes 2 and 3 were assigned to Crazy But Able. His very thorough and well-written analysis goes more deeply into Roberts's rôle in the discussion.

As CBA points out, this episode is being distorted in the press to paid Justice Roberts as anti-female. However, widespread application of comparable worth would require a judicially or bureaucratically administered economy. It's incompatible with our market economy. That doesn't mean countenancing paying people less for the same work because they're male or female, or excluding men or women from applying for certain jobs because of their sex. We can't reach a conclusion one way or the other about Justice Roberts's views or predispositions on sex discrimination in general from this episode.

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