April 27, 1962 — Hearings before Select Subcommittee on Labor of the Committee on Education and Labor, Room 129, US Courthouse, Foley Square, New York City

 

It is a very great honor to me to be called here today, at your invitation, to speak on these two most important measures which, of course, by the way, as I understand it, are identical.

And they are indeed most important.

I also appear today at the request of the American Civil Liberties Union to state the position of the American Civil Liberties Union.

I think we are all too well acquainted with that organization and its purposes for me to go any further in respect to it. I suppose, Mr. Chairman, really the reason why I was invited was that I had the honor to be the first U.S. representative to the Commission of the United Nations on the Status of Women when it was first set up back in 1946, and that was also, as we all know, when Mrs. Roosevelt first took over the chairmanship of the Commission on Human Rights.

I served on that Commission for 3 1/2 years during its formative period. Before that, and this goes back so far that no one here is to know anything about it, I was on a committee appointed by the League of Nations to study the legal status of women through out the world, and we had started in . . .  1939, I must say, which so many people do not seem to know so much about at all anymore.

In any event, we were preparing a comparative study of the legal status of women in both the civil and common law countries of the West and also in Moslem and Hindu law, and we were only interrupted by the arrival of Mr. Hitler who, for a moment, interrupted our work.

It was, however, picked up by the United Nations, and it has gone on ever since. Incidentally, in that connection I had the honor, as U.S. delegate, to propose the first resolution on equal pay for women that was ever introduced in the United Nations.

I recall that our State Department was not quite sure what its policy should be on the matter. I suspect it had never given the matter of equal pay a moment’s thought.

But I reassured them by saying that it was a matter of fairplay, and, of course, the United States was in favor of fairplay. So I was permitted to introduce it.

I was very happy because every single one of the countries on the Commission were unanimous in their support.

As for the American Civil Liberties Union — well, I suppose I should state my qualifications as a witness in this area. I have been on its board for 32 years and have served as vice president and Secretary and am now chairman of its committee on equality, which deals with discriminations of all sorts. Of course, those are mainly minority group discriminations, of course, and the group of women is peculiar, as we all know, in that it is not a minority but a very definite majority group.

I think we emphasize that to remind you legislators of it when it comes around to election time. But nevertheless, women are very seriously discriminated against even if they are a majority group, and nowhere perhaps more than in the economic field where changing economic conditions and old habits and customs clash, and women are caught in the middle.

I learned my first lessons about equal pay and frankly, I was shocked at what I learned at the United Nations. The League of Nations had not prepared me for it because there we were dealing only with laws, whereas equal pay or rather unequal pay, is not a matter of law at all but of habit and custom.

Bad habit and custom, a survival of outmoded thinking. I discovered to my surprise that it was not a phenomenon peculiar to us but was widespread throughout the world. Whatever its ancient roots or original causes, the evil was worldwide.

I remember how surprised I was to learn that Australia, which actually was one of the pioneers in women’s suffrage, had imbedded in its economic system a differentiation between men’s and women’s rates which meant that women on the average only got two-thirds of the pay that men got.

It seemed to me incredible. But a great change occurred. That was in 1946 and 1947. A great change has come over the world’s thinking since then.

Here in the United States, at the time of World War II, the National War Labor Board laid down the principle and which all of the labor unions had to comply with, that there had to be equal pay for women with men in all union contracts.

Congress later, as we know, extended the principle to Government employees. It has also, to a certain extent, been rectified in the States, although as Mrs. Roosevelt has said, it is very spotty there and a tremendous job of work must still be done on the State level.

Of course, you all know what tremendous advantages have been made on the world scene. Mrs. Tillett has told you about that.

Now for the bills themselves which make an effort to give practical form to this principle of simple justice and fair play for women; of course, we all know that you can state a principle but it is an entirely different matter to find practical form for the enforcement of the principle.

In other words, there are many rights to which we give lipservice, or give genuine support, for #. there is no practical remedy.

That has been one of the great difficulties in this area of the principle of equal pay for equal work. The great problem in respect to it is how you are going to determine what you mean by equal work, and it is ” when you have worked out standards for the determination of what work is comparable with what work and so one that you have a chance to develop a remedy. Standards are greatly needed. Fortunately, we were able, during these last 15 or so years to have developed for us by the International Labor Office over in Geneva, a very fine set of standards, of working standards.

There, again, I hate to indicate my own qualifications, but I again had the chance to make the first resolution, calling upon the International Labor Organization to draft a model convention containing standards appropriate for the determination of this question.

It not only obliged, but it has kept the question under major study ever since and has contributed greatly to its clarification. So we have that background of work already done in this area of determination of standards.

The way it has been described is, I think, significant, in describing it in a pamphlet recently published by the United Nations on the subject of equal pay for equal work.

The convention is described as doing this: Whatever other considerations may apply in the fixing of rates of remuneration, the principle is established that there shall be no discrimination on the ground of sex. The convention states further that where such action will assist in giving effect to the principle of equal pay, measures shall be taken to promote objective appraisal of jobs on the basis of the work to be performed.

This means the establishment of wage or salary rates on the basis of the characteristics and requirements of the job and irrespective of the sex of the worker. It means payment of the same rate per unit of measurement, whether pay is by time or piece rate. It means, too, the differential rates which correspond without regard to sex differences in the work to be performed shall not be regarded as being contrary to the principle of equal remuneration.

Where rates are fixed on this basis, that is, according to job content, the sex of the worker, as such, is irrelevant. Such a concept implies the abolition of traditional classification of jobs into men’s work and women’s work.

So with these standards in mind, the bills before us today appear to be soundly based, with sound objectives, and practical workable administrative provisions because, first, the law is a Federal law, dealing with private business engaged in interstate commerce or having contracts with Government.

No law is needed for the Federal Government, itself, because the civil service law covers Federal employees where the principle has already been enacted. This law, therefore, will merely extend the principle to private industry and commerce whether operating independently or with contractors for the Government.

Second, it is a Federal law, rather than a constitutional provision, because constitutional protections against discrimination are traditionally directed against discrimination by Government and not by individual private citizens, and, therefore, would not be deemed applicable in this case where private behavior of private citizens is concerned.

I might add that since the Supreme Court is so loath to apply the equal protection of the laws clause of the 14th amendment of the Constitution to women, except in cases where the unreasonableness of the differential law in question is so extreme as to constitute in effect irrationality. I just had a little run-in with the Supreme Court on that score with women jurors a few months ago.

Little help can be expected at this time from that quarter, but I am always hopeful about the Supreme Court and perhaps they will moderate their position a little bit. As we all know, they are now moderating it a little bit with respect to reapportionment where, again, the concept of irrationality has played a part.

For the time being, a law is obviously the quickest way to achieve the result we want.

Third, it leaves as the only remaining gap in the picture, the intra state business, within the State, both public and private, carried on in those 28 States which have not yet enacted equal pay laws and which are beyond the reach of Federal law.

It is to be hoped that public opinion can be rallied to bring into effect equally in every part of the United States the same principle.

I have no doubt that the enactment of this Federal law will enormously accelerate that progress.

Fourth, and this, I think, is a very important matter, the law pro vides for its administration by the U.S. Department of Labor, the setting up of standards by that body, and the application of those standards to the facts found by that body in each case.

This insures the setting up of the best possible standards in line with the principle so £ worked out by the Department over the years and with the work done by the ILO, much of whose work in that field is actually the product of help from the Labor Department, itself, or its representatives, who have attended meetings of the ILO in Geneva.

So I can conceive of no more competent or understanding administrative agency than our Labor Department for this task. As I say, the standards are already being worked on and formulated, and I have no doubt they are ready for immediate application.

Then the administrative steps for the application of these standards to individual cases, and their enforcement in cases where violations are found, are those which are generally accepted as the best practice; as you mentioned, Mr. Chairman, it is modeled after our FEPC laws.

It is also like our SCAD here in New York, except that I think it is perhaps a little bit better. It includes, as the standard best practice indicates is desirable, the preliminary educational methods. Once a violation is found to exist, a conference, conciliation, and attempted persuasion with legal enforcement procedures only coming after per suasion has failed, if it does, beginning, as we already mentioned, with cease and desist orders, double payment, and liquidated damages, sub sequent steps to protect employees from retaliatory action or reprisals on the part of the employer, all of which is enormously important on the part of the employee, and finally the opportunity for appeal to a Federal district court.

I noticed when you were asking Mrs. Peterson the question about how the cease and desist orders were to be enforced, I see that on page 7 of the law, subdivision (c) it says:

The Secretary shall have power to petition any United States district court within the jurisdiction of which the violation of this act occurs, where the person resides Or transacts business, for the enforcement of any order issued under this section.
 
I have not gone any more deeply into the question of the operations of that sort of procedure, but it indicates here, I think, to a small extent, what is intended as a part of the enforcement procedures.

As you have said, the Department of Justice, of course, knows all about that and has all of the best answers. I am sure it could fill in any gaps that it might be concerned about.

All of this suggests fairplay and due process for all of the parties concerned, and would seem practical and workable as well.

It follows, as I have said, the general procedural lines of FEPC laws and our own SCAD. The only right lacking in practice is generally found to be an insubstantial one: the right of complaint by the employee.

The employee may, in theory, already have such a right now. I am not familiar with that. But it was felt by yourself, Mr. Chairman, and Mrs. Green, the introducers of the measure, that most employees would hesitate to complain for fear of reprisals, and that their best hope would be reliance upon the strong protecting arm, with its standard setting and investigatory power, of the Labor Department.

In that I heartily concur.

In conclusion, I want to go back to the simple question of fairplay, based on the constitutional principles of equal treatment and due process of law.

Whatever the reasons for paying women less than men for doing the same work, none of them make sense nowadays and I doubt if they ever did. People should be paid on an equal basis for the work that they do, whether black or white, man or woman, no difference is tolerable. 

It is a simple matter of fairplay. Women have suffered from this evil long enough. They are in industry to stay and they deserve to be treated like all other human beings in a land of freedom and equality.

In conclusion, I would like to quote one little remark of a recent case in New York State, which is nothing to be too proud about in its laws on the subject, because it has stated the principle in the labor law and has not provided any effective machinery for its enforcement.

This case, Wilson v. Hacker, which had to do with barmaids and barmen, in that case the court stated this, as what it believed was the true principle.

Discrimination on the grounds of sex in the absence of any evidence of incompetence or bad moral character in the particular case must be condemned as a violation of the fundamental principles of American democracy. The right to be free from discriminations on class grounds is one of our fundamental freedoms.

Then the court goes on to quote the Declaration of Human Rights, which Mrs. Roosevelt had a very large part in writing. I might, myself, quote from the Charter of the United Nations, fundamental for all, without distinction as to race, sex, language, or religion.

Finally, I will bring into our support, though it is hardly needed, I think, the words of Pearl Buck, who has long been a student of this movement of women toward human dignity and freedom.

She said:

Free men and free women working on equal terms together in all the processes of life, and what is this but democracy, for in our preoccupation with nations and peoples and races, let us remember again that there is a division still more basic than these in human Society. It is the division of humanity into men and women. Men and women against each other destroy all other unity in life, but when they are for each other, when they work together, the fundamental harmony exists, the foundation on which may be built all that they desire.

Mr. Chairman, thank you very much for giving me this opportunity to come here today and to speak on this subject which is so close to my heart. I am delighted to hear that you are pushing very hard for the success of these bills.

I hope that your efforts may be successful and that they will be speedily enacted into law. Thank you.

 

 

Source: Equal Pay for Equal Work, Hearings Before the Select Subcommittee on Labor, House of Representatives, 87th Cong,, 2nd Sess., on H.R. 8898; H.R. 10226, and Various Bills to Prohibit Discrimination on Account of Sex in the Payment of Wages by Employers Engaged in Commerce or in the Production of Goods for Commerce and to Provide for the Restitution of Wages Lost by Employees by Reason of Any Such Discrimination (Washington DC: US Government Printing Office, 1962), pp. 231-237.