Employment lawyers are scrambling to help their clients comply with President Obama's new "transparency in pay" executive order, effective this week. They needn't worry. It's far too weak to harm employers, and it won't do employees much good either.
Executive Order 13665 Non-Retaliation for Disclosure of Compensation Information, issued last fall, prohibits federal contractors from discriminating against employees and applicants "who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants." It's meant to stop the widespread practice of firing or otherwise punishing employees for talking about their pay.
What the executive order does not do is create an affirmative obligation on the part of contractors to do anything to actually remedy discrimination in pay. Merely stopping employers from forbidding employees to disclose their pay to co-workers will do almost nothing to close the decades-old 21 percent pay gap between women and men working full-time, year round. And it won't do anything to remedy discrimination in particular jobs at any given company. Even in the absence of specific prohibitions, workers are reluctant to disclose their pay to their colleagues. It's nobody else's business, I might be making more, and maybe I don't want to know if I'm making less.
No real "transparency" will be produced by Obama's executive order. Nor will accountability to taxpayers insuring that the fat contracts they fund are used fairly when it comes to paying workers. At best the measure will save a few employees from getting the axe if they inadvertently mention their salary or brag about their bonuses.
Besides, putting the onus on employees to fix ingrained unwritten policies and corporate cultures that produce gender pay gaps -- by whispering in corners about their own and others' compensation -- is ridiculous on its face. Where's the obligation on the part of employers to root out and remedy their pay gaps?
Real pay transparency and accountability to taxpayers on the part of contractors can be done, as experience is beginning to show at state and local levels. Contractors can be required to disclose gender pay statistics by job category as a condition of bidding on a contract - a system pioneered at the state level by then-Governor Bill Richardson of New Mexico in 2010. That approach was toughened and expanded by Albuquerque Mayor Richard Berry in 2014, when the city not only required reporting, but began awarding a premium to bidders showing fair pay for women and men working in the same job categories. The reports at both levels are publicly available. And guess what? It's a bi-partisan issue. Richardson is a Democrat and Berry is a Republican.
Other jurisdictions are in various stages of planning or crafting similar initiatives -- most notably the State of Missouri, cities such as San Francisco, New York and Tempe, Arizona, Erie County New York and Bernalillo County, New Mexico. That's very good news, but progress should not depend on geography or local leaders alone.
Obama's timid steps have shown that it's within the purview of the president to require assurance from federal contractors that our tax dollars are being spent fairly and wisely. (A separate "Memorandum" was issued at the same time as the executive order requiring the Department of Labor to develop a way to collect some pay statistics, but in the unlikely case it's ever actually implemented the info won't be public.)
Female voters are now the majority, and have the ability to control any election. Let's hope they ask aspirants to the Oval Office whether they stand with women -- or stand with big business -- when it comes to new and stronger executive action to finally close the gender pay gap.