Scheduling Shortfalls: Hours Parity as the New Pay Equity

At the dawning of the fifty-year anniversary of the Equal Pay Act of 1963, and as the same anniversary of Title VII of the Civil Rights Act of 1964 draws near, it is time to change the way we think about pay equity. Workplace fairness between women and men should no longer be framed merely by total disparities in pay, but also by disparities in hours given to women seeking as much work as their male counterparts. Doing so recognizes the realities of many female workers in today’s workplace and addresses the shortfalls thus far absent from the civil rights conversation about pay equity. Today’s workforce is filled with female contingent workers who are at the mercy of their supervisors as to the number of hours they work. The number of part-time workers has steadily increased over the last decade, with involuntary part-time workers (those forced to downgrade from full-time to part-time because of economic conditions or the employer’s needs) numbering 8.2 million and the total number of part-time workers exceeding 27 million. Two-thirds of part-time workers are women, and as the Congressional Joint Economic Committee has recognized, the gender pay gap is partly driven by the earning penalty for part-time work, which pays less per hour than the same or equivalent work done by full-timers. One under-examined factor in this pay inequity is the power of scheduling that employer supervisors have over their part-time work force. From the outside, supervisors seemingly make capricious decisions on whom to schedule, when, and for how many hours. When individual supervisors make these unilateral decisions without regard to employment standards or criteria, they appear to do so with little oversight and guidance, which can lead to discriminatory bias based on gender. This gender bias can be motivated (consciously or unconsciously) by societal stereotypes casting women as less than “ideal workers” with weak commitment to the workplace because of outside caregiving responsibilities. From a doctrinal standpoint, however, the current statutory regimes seem ill suited to address these disparities. The Fair Labor Standards Act (FLSA) of 1938 merely mandates minimum and overtime wages, the Equal Pay Act of 1963 does not cover hours equity, and Title VII of the Civil Rights Act of 1964’s anti-discrimination mandate rarely (if ever) reaches the issue of scheduling and is therefore sorely underdeveloped. Moreover, due to recent Supreme Court decisions dramatically restricting employment discrimination class actions, bringing aggregate litigation for low-wage workers will be an uphill battle, one attorneys are likely loathe to take on for relatively low damages. This Article makes the case for changing the way we think about pay equity. Because our workforce is filled with part-time workers, advocates for low-wage workers should focus not only on pay inequities and living wages, but also on hours equity. Hours equity would provide much-needed stability to scheduling that would allow female part-time workers to have a reliable schedule with guaranteed hours so that they make an expected amount of pay.