November 30th is Native and Indigenous Women’s Equal Pay Day. This marks the day the average Native and Indigenous woman must work until to earn what their white, non-Hispanic, male counterparts earned in 2022. That is 11 months of additional work!
Native and Indigenous women working fulltime, year-round earn 59 cents on the dollar compared to their white, non-Hispanic, male counterparts. Seasonal and parttime workers earn less – 55 cents on the dollar. Over the course of a 40-year career, this wage gap will cost a Native woman over $1.1 million in earnings.
In theory, this is the last “Equal Pay Day” of the year. However, mothers of many races are still working to earn what men did last year. Here is the 2023 recap (based on 2021 data unless otherwise noted).
Asian American, Native Hawaiian,
Pacific Islander women (“AANHPI”)
79 cents for all workers
Native Hawaiian/Pacific Islander women
Latinas (2022 data)
Native and Indigenous women (2022 data)
It is important to note that (1) there is inadequate data for LGBTQIA+ women, and (2) there are significant differences within each category.
Why are these numbers different? They reflect the intersection and compounding of biases. When we take into account biases attributable to race, ethnicity, age, motherhood, sexual orientation, gender identity, tribe, and other factors, the gender pay gap increases significantly with each additional bias.
The gender pay gap leads to a wealth gap, as well as increased poverty for older women.
This June marked the 60th Anniversary of the Equal Pay Act, which was intended to eliminate the gender pay gap. With little progress over the past few decades, it is obvious that current protections are grossly inadequate. And courts continue to make it more difficult to establish discrimination.
For example, last month, in Eisenhauer v. Culinary Institute of America, the 2nd Circuit Court of Appeals held the an employer’s affirmative defense that the pay inequality was “based on a factor other than sex” need not be job related.
Women cannot wait any longer. Especially women of color.
If we want to eliminate the gender pay gap, we need the Equal Rights Amendment (“ERA”) enshrined in our Constitution. The ERA grants women, girls and LGBTQIA+ people equal protection and ensures that work-related unequal pay claims are subject to a strict scrutiny standard of review (with a 30-53% greater likelihood of success). The ERA and the higher standard of review that comes with it will give the Equal Pay Act or the proposed Paycheck Fairness Act the teeth needed to put an end to the pay disparities and blatant gender discrimination.
We will need to take additional steps, such as ensuring access to quality, affordable childcare, requiring pay transparency, and eliminating the use of mandatory arbitration and confidentiality/non-disclosure agreements, which enable discrimination against women to secretly flourish without risk of exposure, in connection with any work-related claims.
However, the ERA is the critical first step. It is ratified and ready. All we need is for President Biden to publish it. For additional details, see our Written Testimony to the Senate Judiciary Committee for inclusion in the record of its hearing, “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.”
We cannot wait any longer, particularly our most marginalized communities.