The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment.
The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of the framework within which comparable worth has developed as a legal doctrine. Furthermore, she identifies the unresolved issues and the strategic choices concerning those issues that may determine the future scope of the concept of comparable worth.
The article is divided into three sections. First, it examines comparable worth litigation from its emergence in the 1970s through 1986. The article then focuses in detail on three recent opinions and their impact on the current framework of comparable worth litigation: the Ninth Circuit's opinion reversing the landmark Washington State case; the Seventh Circuit's opinion granting limited reinstatement of the complaint in the American Nurses Associations case; and the Supreme Court's opinion analyzing historic wage discrimination in the Bazemore case. Finally, the article considers the future of the concept of comparable worth in light of the unresolved issues surrounding the scope of this legal doctrine and the impact of litigation strategy on the resolution of those issues.
Nancy E. Dowd, The Metamorphosis Of Comparable Worth, 20 Suffolk U.L. Rev. 833 (1986), available at http://scholarship.law.ufl.edu/facultypub/436