Stephanie Bornstein’s illuminating article, Confronting the Racial Pay Gap, performs an almost shockingly useful math exercise for legal theorists. First, Professor Bornstein recounts statistics on the racial disparities between White families and families of color. “Recent estimates show the median net worth of an average White family is nearly ten times that of an average Black family” (in 2016, $171,000 compared to $17,100) “and nearly seven times that of the average Latinx family” (in 2019, $142,180 as compared to $20,765). (P. 1405.) She observes that “despite gains in the perceived social and economic status of Black and Latinx Americans, racial wealth gaps are worse than they were thirty years ago.” (P. 1416.)
Professor Bornstein then highlights the astounding details of the racial pay gap. Using the metric of comparing only workers who work full-time, year-round, in 2019, the average Black worker earned 73.5 cents and the average Latinx worker earned 74.6 cents on the dollar to the average White worker. While there was some improvement prior to 2000, these racial pay gaps are now larger than they were four decades ago. Before commenting upon some of the underlying findings in this global result, I want to pause here to consider what these two conclusions tell us in particular about the economic dynamics at play in White/Black relations in the United States. Here comes the math. White families have ten times the wealth that Black families possess and the gap cannot be closed with wages.
Professor Bornstein cites economic data and scholarship appearing to lay out the details of how we arrived at this point. “From 1950 to 1980 the Black-White pay gap shrank, due in part to the introduction of civil rights laws, but also to economic trends and increasing unionization that raised wages for low- and middle-income earners, among whom workers of color are disproportionately represented . . . In the 1980s, as unemployment rose and unionization rates fell, the Black-White wage gap increased. In the 1990s, with an increase in the minimum wage and strengthening labor markets generally, the gap declined for a period of time, stalling again in the early 2000s. In the two decades since, the Black-White wage gap has increased in all wage quartiles for workers of all education levels.” (Pp. 1409-10.)
It should come as no surprise that women of color are hit even harder by the racial wage gap because they are the victims of the dual suppression of wages related to gender and race (Professor Bornstein terms this a “double gap”). In 2019, Black women earned only 63 cents to the dollar of White men, and Latinx women only 55 cents. As Professor Bornstein notes, as shocking as these numbers are they actually reflect a modest improvement since 1979. More surprising to me was her observation that “[w]hen compared to the earnings of White women . . . the racial pay gap for Black and Latinx women has also increased. Black women went from earning 92.1% of what White women earned in 1979 to 80.1% in 2019 and Latinx women from 82.5% to 70.4%.” (P. 1411.)
I could go on repeating Professor Bornstein’s detailed summary of the relevant facts, but the argument is structured to unfold easily from there. In Part II of the article, Professor Bornstein argues for improvements to antidiscrimination law including buttressing of disparate treatment and disparate impact theories in Title VII litigation, and extending Equal Pay laws at the state level to include race as a protected classification (which improves plaintiffs’ chances given the legal burdens involved).
She also embraces other antibiasing measures at the state level. Indeed, I noticed throughout the discussion that a great deal of law reform in this area can probably only be considered seriously at the state level. Increasing pay transparency so that applicants and employees have some basis upon which to comparatively assess their pay seems an obvious measure to improve the situation. Banning employer inquiry into applicants’ prior pay to reduce reflexive perpetual tethering of employees’ present pay to already disparate prior pay schemes seems an equally obvious tactic. Both measures have only experienced limited success at the state level.
Professor Bornstein also explores—in Part III of the article—long term structural dimensions of disparate pay. She recognizes that closing such an enormous racially disparate pay gap may be a long endeavor and therefore focuses on two policies especially worthy of present attack. First, she discusses employers’ reliance on the prior criminal record of an applicant for employment. Then, she closely scrutinizes the phenomenon of “overskilling”—mismatching educational requirements to jobs.
These putatively neutral employment practices: “we only hire applicants without a criminal record;” or, “we only hire applicants with a master’s degree” can have the effect over time of screening applicants of color from desirable employment opportunities. At least at the state level, there have been some successes in regulating the practices, and Professor Bornstein advocates continuing social advocacy in these areas.
I think Professor Bornstein does a masterful job in identifying the racial wage gap and making proposals to reduce it. I was especially impressed by her discussion of “occupational segregation.” Wage gaps are often dismissed as a function of accidental “human capital” deficiencies—applicants should simply obtain more education or skills and develop a “work ethic.” But the article highlights that wage gaps occur across all wage levels—even Black workers with advanced degrees make less than White workers with the same degrees.
Occupational segregation—the distribution of workers by race and gender in different industries and occupations—calls into question original wage setting functions. I find it interesting when jobs are considered “good jobs” until women and people of color begin to obtain them. Somehow at that point they become less good. Occupational segregation causes me also to think about the extent to which Black workers have over time been shunted into dangerous work, even before the pandemic. Professor Bornstein’s article usefully makes me more suspicious of such “accidents” and additionally causes me to question the “neutrality” of all wage-based benefits systems.
