Confronting the Racial Pay Gap
Stephanie Bornstein | 75 Vand. L. Rev. 1401
For several decades, a small body of legal scholarship has addressed the gender pay gap, which compares the median full-time earnings of women and men. More recently, legal scholars have begun to address the racial wealth gap, which measures racial disparities in family economic security and wealth accumulation. Yet a crucial component of both the gender pay gap and the racial wealth gap remains unaddressed in the legal literature: the pay gap between the earnings of White workers and workers of color. Today, all women average eighty-two cents to each dollar men earn, but Black and Latinx workers average only seventy-four cents on the dollar to White workers. Black and Latinx women, affected by both racial and gender pay gaps, average a mere sixty-three and fifty-five cents respectively per White men’s dollar. And while the gender pay gap has narrowed, albeit slowly over time, the racial pay gap has grown. Black and Latinx workers now earn less relative to White workers than they did in the late 1970s.
The lack of legal attention to the racial pay gap reflects a belief that to remedy the problem would take major social change to dismantle the education, criminal justice, and other systems that lead Black and Latinx workers to disproportionately hold lower paid jobs. While widescale change may be necessary (and still insufficient) to fully close the racial pay gap, more can and should be done to narrow it now. The racial pay gap has worsened despite significant gains in educational attainment by Black and Latinx Americans. Economists have documented that between one-third and two-thirds of today’s racial pay gap cannot be attributed to known causes and is due to “unobservable” factors including discrimination. A handful of states have added the protected class of race in recent amendments to strengthen their state law versions of the federal Equal Pay Act. This Article details the scope of the racial pay gap that may be reachable through antidiscrimination law and provides new legal strategies for doing so. Yet beyond strengthening pay discrimination claims, this Article argues for tackling structural pieces of the racial pay gap even as we work toward improving those structures—for example, by limiting the present effects on pay of racially disparate criminal justice and education systems.
Recent public reckoning from the #MeToo and Time’s Up movements has sparked renewed interest in closing the gender pay gap. The growth of the Black Lives Matter movement in the wake of the killing of George Floyd has drawn attention to the racial wealth gap as part of the legacy of White supremacy. But interest in the equally important—and not insurmountable—issue of closing the racial pay gap has yet to catch on. This Article begins the process of reframing to highlight how confronting the racial pay gap is an essential but overlooked piece of the zeitgeist, key to resolving the gender pay gap for women of color, the racial wealth gap, and income inequality overall.