Women at work: Equal and fair pay

Most people treat equal pay and fair pay as interchangeable. They are not the same thing. Equal pay describes what the law requires, which is identical wages for substantially identical work performed by a man and a woman in the same workplace. Fair pay describes the structural undervaluation of women’s labor across the entire economy. The gap between those two concepts is a gap in the interpretive resources we have for naming what women actually experience. And until we can name it precisely, we cannot legislate it accurately.

What the law actually says

The legal architecture on pay discrimination is built on three statutes, each responding to the failures of the one before it.

The Equal Pay Act of 1963 (EPA) requires that men and women performing substantially equal work, that is, equal in skill, effort, and responsibility, under similar working conditions, within the same establishment, receive equal pay (29 U.S.C. § 206(d)). An employee bringing an EPA claim does not need to prove the employer intended to discriminate; only that a pay disparity exists for substantially equal work. The burden then shifts to the employer to justify the gap under one of four affirmative defenses: a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or “any other factor other than sex.” That fourth defense has become one of the most significant loopholes in pay equity law.

Title VII of the Civil Rights Act of 1964 extended the prohibition on sex-based pay discrimination to a wider range of circumstances, but raised the bar: Title VII claims require proof of discriminatory intent, meaning the evidentiary burden on workers is substantially heavier. An employee must demonstrate not just that a gap exists, but that the gap was produced by sex discrimination specifically.

The Lilly Ledbetter Fair Pay Act of 2009 addressed a narrower but critical problem. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the Supreme Court ruled that the 180-day statute of limitations for filing a pay discrimination claim began on the date the pay decision was made, and not the date the discriminatory paycheck was received. Lilly Ledbetter had been paid less than her male peers for nearly two decades but had not known it. By the time she discovered the disparity, the Court said the clock had already run out. Congress reversed that ruling: the Ledbetter Act established that each discriminatory paycheck resets the filing window, recognizing, as its own text states, the “reality of wage discrimination”, that pay inequity accumulates over time and is rarely visible in a single transaction. Ledbetter herself received no financial remedy. However, the law bearing her name fixed the clock for everyone who came after her.

As of 2025, pay transparency laws are a patchwork of state and local requirements; the National Labor Relations Act (NLRA) protects workers’ right to discuss wages with coworkers but does not require employers to disclose them.

Why the law can’t see the gap

The legal architecture above was designed to identify individual transactions where a woman was paid less than a man for the same work. It was not designed to identify why women’s work is systematically worth less in the first place.

In Epistemic Injustice: Power and the Ethics of Knowing (2007), Fricker identifies two forms of epistemic injustice, which are wrongs done to people specifically in their capacity as knowers.

The first is testimonial injustice: a speaker’s credibility is deflated due to identity prejudice. A woman reporting pay inequity to HR, a manager, or a court is less likely to be believed than a man making the same claim. The legal mechanism for an EPA claim , which is identify a male comparator, produce documentation, meet the “strictly equal” threshold, places the full evidentiary burden on the woman whose credibility is already structurally suspect.

The second is hermeneutical injustice: a gap in collective interpretive resources leaves someone unable to understand or articulate their own experience. This is the sharper instrument for the fair pay problem. When women experience their work as undervalued, devalued, or simply worth less than equivalent work performed by men, there is no legal category for that experience. The law has instruments for discrimination in a single transaction but no instrument for structural devaluation as an ongoing condition. The experience is real. The vocabulary does not exist in doctrine.

Equal pay law was built on a testimonial model: prove you were treated differently. Fair pay requires a hermeneutical model: name what the structure produces. Most of the gender wage gap lives in the space between those two models, in four specific mechanisms that the law can see only partially, if at all.

Four causes that live in the gap

1. Occupational segregation

The gender wage gap is not primarily a story of women being paid less than men for the same job in the same room. It is a story of women being concentrated in fields that pay less, and those fields paying less largely because women are concentrated in them.

Research confirms that average earnings in an occupation decline as the proportion of female workers in that occupation rises (Institute for Women’s Policy Research). Economists call this the “devaluation hypothesis”: when women enter a field in large numbers, the social value assigned to that work decreases, and wages follow (Levanon, England, and Allison, 2009). The work itself does not change. The pay does. Fricker’s hermeneutical frame locates the mechanism precisely: the interpretive resources available to evaluate work are not neutral. They are structured by assumptions about whose labor has value and those assumptions run upstream of any individual employment decision.

The EPA has no instrument for this. It can adjudicate whether a female nurse is paid less than a male nurse at the same hospital. It cannot adjudicate why nursing pays less than the fields men historically dominated, or why that differential persists even as the profession requires advanced licensure and carries life-or-death stakes.

2. The motherhood penalty

When a woman has a child, her wages typically fall. When a man has a child, his wages typically rise. This asymmetry between the “motherhood penalty” versus the “fatherhood bonus” is one of the most consistent findings in labor economics research.

In 2023, mothers earned 61.8 cents for every dollar paid to fathers (IWPR, 2025 Mom’s Equal Pay Day Report). Research published in the Proceedings of the National Academy of Sciences using administrative data from more than 811,000 quarterly earnings histories found that the motherhood penalty accounts for the vast majority of the gender earnings gap. Critically, the penalty is not simply a function of reduced hours: even women who were the primary breadwinners in their households before giving birth experienced significant income losses afterward (Columbia University).

The law frames this as an individual choice. That a woman who reduces her hours or leaves the workforce has made a labor supply decision. The structural reality is different: caregiving infrastructure in the United States is organized in a way that assigns the economic cost of reproduction disproportionately to women. What the law calls a choice, Fricker’s framework would call an experience that has been hermeneutically obscured, that is, rendered as personal rather than structural, as voluntary rather than extracted.

3. The negotiation mythology

A persistent explanation for the gender wage gap is that women don’t negotiate, or don’t negotiate as effectively as men. This narrative does real work in policy discourse because it locates the cause of the gap in women’s individual behavior, that is, a problem of technique, not structure, and therefore solvable through training rather than legislation.

The evidence is considerably more complicated. Studies find that when women negotiate, they frequently face social penalties for doing so, like being judged as aggressive or unlikeable in ways that cost them professionally. Other research finds that women negotiate less not because of preference but because they have less information about what their counterparts are paid. Pay secrecy creates an information architecture that makes effective negotiation structurally harder for the party with less market power, and in most workplaces, that is women.

This is testimonial injustice at the structural level: the negotiation narrative systematically deflates women’s credibility as assessors of their own market value, then blames the outcome on their epistemics rather than on the conditions that produced them. The Paycheck Fairness Act would address part of this by prohibiting retaliation for discussing wages. It would not address the deeper dynamic, that women are penalized for the same self-advocacy that is rewarded in men.

4. Pay secrecy

Salary secrecy is the information architecture that makes all three of the above causes harder to detect, document, and contest. If you don’t know what your colleagues make, you can’t know whether you’re paid less. If you can’t document a disparity, you can’t bring an EPA claim. If an employer can prohibit wage discussions, or simply make them culturally taboo, the conditions for testimonial injustice are structurally locked in.

The NLRA has protected employees’ right to discuss wages with coworkers for decades. But that protection does not require employers to proactively disclose compensation. As of 2025, only a handful of states require salary range disclosure in job postings. The practice of using salary history as the basis for initial compensation, which is now banned in many states, functioned for decades as a compounding mechanism: past discrimination sets the baseline, and the baseline travels with every new hire. Massachusetts became a national leader when it banned salary history inquiries in 2016; without federal action, protection remains uneven.

Pay secrecy is not an accident of workplace culture. It is the information environment in which the gender wage gap reproduces itself.

What policy proposes and where it stops

The most significant pending federal legislation is the Paycheck Fairness Act, introduced in every Congress since 1997 by Representative Rosa DeLauro and never passed. In its current form, it would: close the “factor other than sex” loophole by requiring employers to demonstrate that pay differentials are genuinely job-related and consistent with business necessity; prohibit retaliation against employees who discuss wages; require the EEOC to collect compensation data disaggregated by sex, race, and national origin; and ban the use of salary history in setting initial compensation.

These are meaningful reforms within a testimonial model. They make it easier to prove that a specific woman was paid less for a specific reason that was discriminatory. They do not create a legal category for structural devaluation of women’s work.

Pay equity audits: proactive employer-side analysis of compensation data to identify and close disparities. The Biden Administration’s Office of Federal Contract Compliance Programs issued a directive in 2022 requiring federal contractors to use pay equity audits to identify barriers to equal pay. Several states have moved in this direction independently. An intersectional pay equity audit is closer to a hermeneutical instrument: rather than waiting for a woman to bring a claim, it asks the employer to look at what the structure is producing.

The most structurally ambitious policy proposal, comparable worth, or pay equity across occupations remains the most contested. Comparable worth would require that jobs be evaluated on the basis of skill, effort, responsibility, and working conditions regardless of who typically performs them, and that equivalent jobs be paid equivalently even across different occupational categories. It would directly address occupational segregation and devaluation. It has not been enacted at the federal level.

Even the most ambitious of these proposals operates within the existing interpretive frame: they improve the instruments for detecting and remediating discrimination, but they do not yet name devaluation as a category of legal harm in its own right.

The distance between equal and fair

Equal pay is a legal floor built in 1963. Fair pay is a demand that the floor is not enough. The distance between them is where most of the wage gap lives; in occupational devaluation, in the motherhood penalty, in the information asymmetries that make pay discrimination invisible, and in the social penalties that fall on women who try to name what they know.

The law was built on a testimonial model: show a comparator, document a disparity, prove it was discriminatory. That model catches a subset of what women experience. It cannot catch the structural devaluation that Fricker’s framework names, which is the hermeneutical gap between an experience women have and the legal vocabulary that would allow them to claim it.

Fair pay would require building that vocabulary into law: recognizing occupational devaluation as a harm, not just compensation discrimination; treating the motherhood penalty as structural extraction rather than personal choice; requiring employers to surface what the structure is producing rather than waiting for workers to prove it.

Until the law can name what women know, that their work is worth less not because they produce less but because of who they are, equal pay and fair pay will remain two different things. Women will go on living in the distance between them.