A woman at the English BBC is suing, demanding additional pay for past work. A male colleague doing similar work got 3,000 pounds per episode (about $4,156) while she only received 465 (about $644). The BBC replied that the two positions were not the same.
Similar lawsuits occur in the United States. The Boston Symphony's principle flute player sued because she was making a lot less than the principle oboist. She later settled with the symphony for an undisclosed amount.
The abstract principle that people doing equal work should receive equal pay sounds plausible. But efforts to incorporate this principle into law can produce manifest injustice.
Who, if not employers, should judge what constitutes "equal" work? A professional conductor can determine what is equal musical work better than the judge, jury or bureaucrat who would decide a discrimination suit.
The Boston Symphony argued that oboes are harder to play than flutes. This makes sense. Oboists must contend with troublesome reeds while flutes don't have reeds.
There are also differences in the supply and demand for particular skills. The market for oboists might be more competitive that the market for flutists, requiring higher pay just to fill the job.
There are two ways to resolve claims of unequal pay: raise the pay of the complaining worker, or reduce the pay of the other worker. The BBC broadcaster who received higher pay agreed to reduce his future pay so as to reduce the difference with that received by the woman. But she still sued, demanding extra pay for work she had already done.
Here we run into a problem. Should the law require the higher paid worker to refund the extra he had received during the last several years? This would be highly unfair to a worker who agreed to work for a certain salary, had been receiving it, and had probably spent most of it. If agreed upon salaries could be reduced retroactively, nobody could be sure what his or her income is and whether it is safe to spend money that might be grabbed back.
How could one even decide whether to accept a new job? The oboe player had moved to Boston in order to get a higher salary (as had the flute player, for that matter).
Forcing a worker to refund years of "excess" back wages would clearly be unjust. But it would be equally unjust to force an employer retroactively to increase a worker's past salary, which that worker had agreed to accept, and to pay the employee the additional money. Symphony orchestras often have precarious finances. Forcing one to pay more than the flute player had agreed to accept for her past work could drive it into bankruptcy.
A principle here applies to the Boston Symphony, to the BBC, and to all employers: workers who agreed to work for a specified salary should be forbidden from suing later on for "back pay" for any reason.
That, of course, assumes the employer had actually paid what it had agreed to. If it has paid less than that, a normal breach of contract lawsuit should suffice.
Discrimination lawsuits for back pay are incompatible with due process of law. People must be able to know whether something they are thinking about doing is illegal. It is impossible for an employer to predict whether workers who have agreed to accept a certain salary will decide five years later that they haven't been paid enough.
The ability to make legally enforceable agreements is so fundamental that the Constitution wisely provides that "no State shall ... pass any law ... impairing the Obligation of Contracts ..." Back pay lawsuits clearly impair the obligation of employees to accept the compensation they had agreed to.
No employer should ever be forced to cough up anything beyond what it agreed to pay in the explicit or implicit contract of employment.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966 and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon and a number of other states. Read Professor Paul F. deLespinasse's Reports — More Here.
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