This is the second in our series of posts based on Presidential Candidate Ron Paul’s musings on employee rights in his book Freedom Under Siege. This installment’s “Paulism” can be found on page 17 of the book:

The idea that the social do-gooder can legislate a system which forces industry to pay men and women by comparable worth standards boggles the mind…The concept of equal pay for equal work is…an impossible task…. By what right does the government assume the power to tell an airline it must hire unattractive women if it does not want to?

Mr. Paul’s opinion that only attractive women should work as flight attendants is amusing, but it does bring up some employment law issues, both explicitly and implicitly.

Gender Identity Discrimination

As a general principle, it is not illegal in California to choose an attractive job candidate over a candidate who is equally qualified but unattractive, as long as this is the actual reason for the decision.

However, issues such as the person being unattractive because of a disability or the person doing the hiring would simply rather work with the less-qualified attractive woman than the highly qualified male applicant, discrimination claims become more of an option.

Another issue this brings up is known as “gender identity discrimination”. Essentially, this refers to an employer refusing to hire or firing someone for not “acting like” their gender. For example, a woman who is not feminine enough is rejected for employment by Victoria’s Secret or a man who acts too effeminate is terminated from his job as an auto mechanic.

This theory of gender discrimination is still fairly rare, but is much more common than it was even five years ago, especially concerning transgendered employees. The crux of the legal argument is that because adverse employment actions are taken against these employees because they are not conforming to the stereotypical behavior and appearance of their gender, these actions are taken because of their gender, thus making it gender discrimination.

There have been a few cases where employees have made arguments similar to Mr. Paul’s hypothetical, but usually not successfully. For example, the 9th Circuit Court of Appeals recently ruled that female casino employees can be required to wear makeup even when their male counterparts are not.

Equal Pay for Equal Work

The undercurrent of Mr. Paul’s quote, however, is its reference to “equal pay for equal work.” This refers to the Equal Pay Act of 1963 (”EPA”), which is part of the Fair Labor Standards Act and says that, all other things being equal, women must be paid as much as their male counterparts in a company (and vice-versa).

Under Mr. Paul’s view, an employer should be free to pay each employee whatever they wish for whatever reason they wish. While this makes sense when all employees are on equal footing when competing for jobs, it ignores the realities of the United States’ (and the rest of the world’s) ingrained discriminatory attitudes towards women.

The EPA was passed to curtail employer behavior based on outdated stereotypes of women. For example, paying women less because of an employers’ belief that:

• Women belong in the home and should be discouraged from entering the workplace;
• Women will eventually quit once they “find” a husband;
• Women will eventually leave to have babies; or
• Women are inherently less qualified or less intelligent than men.

Study after study has shown that women are still paid less than men for doing the exact same job. The EPA was passed in an attempt to remedy this and since its passage the disparity in pay has substantially decreased.

However, when Mr. Paul wrote his book in 1987 the gap was much larger than it is today and blatant discrimination against women in the workplace was much more prevalent.

Conclusion

Apparently Ron Paul thinks bias against women is a perfectly good reason to make pay-level decisions. While he is entitled to his opinion, I am unable to understand how his supporters are more than 50% female.

At first I thought this was similar to his prior racist and homophobic rants, which are somewhat buried in history and do not get much coverage. However, this book is actually heralded by his supporters, including rave reviews by women.

I guess I just don’t get it.

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California Employment Law | Discrimination | Gender Discrimination | Marital Status Discrimination | News | Policy : Opinion | Pregnancy Discrimination