46. Women’s participation in the workforce has played a key role in contributing to the last decades of the country’s economic growth. Women constitute nearly half of the labour force in the United States, at a participation rate of 57.0%. Mothers are more likely to provide significant financial support to their families than ever before, with nearly two-thirds primary or co-breadwinners for their families34. Among dual-earner couples, 29% of women equalled or out-earned their husbands. Women today are more likely than men to graduate college, and are as likely to obtain advanced degrees35.
47. However, while women have made great achievements in education and have increased their workforce participation, the Working Group is concerned that their crucial labour force participation and educational achievements are not accompanied by equal economic returns, especially as it is reflected in the wage gap and the high numbers of women earnings minimum or beneath minimum wage. It notes that, in practice, the discrimination against women in employment continues, valuing women’s work less and providing less favourable terms and conditions of work, including salary and promotion. Furthermore it considers that, despite the prohibition of discrimination in employment and the establishment of an Equal Employment Opportunity Commission, the legal system does not provide women with an equal playing field, failing to secure the workplace accommodations necessary for women to fulfil both reproductive and productive roles.
48. The Working Group regrets the persistence of a corporate culture that perpetuates gender stereotypes. The Working Group was informed that women own over one third of US firms, mainly in small and medium size businesses36, and that these businesses face greater barriers in obtaining low cost capital from sources such as the Small Business Administration and clearly need support in order to achieve equal economic potential. However, the Small Businesses Administration has a stated goal of awarding only 5% of federal contracts to women-owned businesses. It is reported that this goal has never been reached in practice.
49. The Working Group recognizes the gains for women’s equal opportunity in employment made under the equal protection guarantees of the Fourteenth and Fifth Amendments and the prohibition against employment discrimination contained in Title VII of the Civil Rights Act of 1964. It also appreciates the sex discrimination decisions, in which the United States Supreme Court has rejected the use of gender stereotypes, has recognised the legitimacy of affirmative action and the discriminatory effect of sexual harassment and gender hostility in the workplace. However, in other of its decisions, the Court has made it more difficult for women to prove discrimination. In equal protection cases under the 14th Amendment, the Court has traditionally applied intermediate scrutiny rather than strict scrutiny. In Title VII cases, the Court has developed two principal models for proving claims of employment discrimination. The “disparate treatment” model focuses on an employer’s intent to discriminate. Alternately, the “disparate impact” model a facially neutral employment practice may violate Title VII even if there is no evidence of an employer’s intent to discriminate. Both models require the plaintiff to establish a prima facie case of discrimination and. the burden then shifts to the employer to articulate a defense. Ultimately, however, the plaintiff retains the burden of persuasion to establish that the employer’s assertion of a legitimate, non-discriminatory reason for its actions was a mere pretext. The Supreme Court has also recently circumscribed the effectiveness of using class action suits in employment discrimination claims (see para 33).
50. The gender wage gap is 21% and during the last decade little improvement has been made in closing it despite the Equal Pay Act of 1963 (EPA). According to some research, a woman working every year between 25 and 65 will have lost $420,000 over her working lifetime because of the earnings gap.37 Education increases women’s earnings but does not eliminate the gap, which is in fact larger for those with the highest levels of educational attainment. In her lifetime, a woman with an advanced degree such as law or medicine can expect to earn 2 million dollars less than her male peers38. The wage gap affects women’s income throughout their lives, impacting their financial security and independence and increasing pension poverty.
51. The wage gap may be attributed both to vertical discrimination in wage scales and to horizontal discrimination as a result of a gender segregated labour market. In order to address the latter, international human rights law requires the right to equal pay for work of equal value. However, in the United States, neither federal nor state equal pay laws have required equal pay for work of equal value. Exceptionally, California has now set a precedent with its 2015 California Fair Pay Act legislating the right to equal pay for work of equal value.
52. Women’s earnings also differ considerably by ethnicity: Afro-American, Native American and Hispanic women have the lowest earnings. Across the largest racial and ethnic groups in the United States, Asian/Pacific Islander women have the highest median annual earnings at $46,00039, followed by white women ($40,000). Native American and Hispanic women have the lowest earnings at $31,000 and $28,000, respectively. Data also indicates that women of color are less likely to attain a Bachelor’s degree or higher when compared to other women40.
53. The expert group is concerned that, although the 1978 Pregnancy Discrimination Act established that pregnancy discrimination is sex discrimination under Title VII, between 1997 and 2011, the number of pregnancy discrimination complaints filed with the Equal Employment Opportunity Commission increased by 46 percent41 and pregnant women have largely continued to lose their requests for remedy. The experts hope that the 2014 guidelines of the EEOC and the decision of the Supreme Court in 2015 in Peggy Young vs. UPS42, improve access to justice for pregnancy related discrimination43.
54. The Working Group is appalled by the lack of mandatory standards for paid maternity leave, which is required in international human rights law. The Family and Medical Leave Act, which gives employees of employers who have more than 50 employeesthe right to take unpaid, job-protected leave of twelve workweeks in a 12-month period, cannot be regarded as in lieu of paid maternity leave and falls far beneath international human rights standards, which require that maternity leave must be paid leave for a minimum of 14 weeks, with best practice being the provision of additional paid leave for fathers too. Some form of paid parental leave is provided by legislation in 3 states44 but only for six weeks and none at full pay. Attempts by the current administration to provide paid maternity leave for federal employees have not yet been successful.45 The United States is one of only two countries in the world without a mandatory paid maternity leave for all women workers.
55. The Working Group is also concerned at the unequal division of family caregiving work demonstrated by the fact that women are nine times as likely as men to work part-time for family care reasons. Part-time work means lower earnings (and lower Social Security contributions) than full-time work; part-time workers are also much less likely than full-time workers to have access to paid leave of any kind or to benefit from employer contributions to employer-provided health insurance or pension plans. Women are also three times as likely as men to report having left their job because of caregiving responsibilities (6 percent compared with 2 percent respectively, according to a 2013 AARP survey of people aged 45 to 74). A study by MetLife (2011) estimated that women with caregiving responsibilities who are over the age of 50 lose $324,044 in income and benefits over their lifetime when they completely exit the workforce for caregiving reasons.46 The Working Group considers that the public budget should provide childcare, after-school and also elder and disabled facilities, which are affordable and accessible, to allow adults with care responsibilities, women and men, to work in full time employment.
56. The percentage of women in poverty has increased over the past decade, from 12.1% to 14.5%, at a higher rate of poverty than men, affecting predominantly women of colour, single parent families and older women. As noted previously by other UN independent experts, the subprime mortgage market disparately targeted the poor and, in particular, poor women, thus contributing to this increase in women’s poverty.
57. The Working Group suggests that both Federal and state governments address this problem urgently, by promoting employment for women, raising the minimum wage and eliminating the wage gap. Residual poverty should be addressed through the social security system and, given the country’s economic strength, there should be a policy of zero tolerance for the relegation of people to poverty.
58. Furthermore, many stakeholders complained that minimum wages have lost value as a living wage. The majority of minimum wage earners are women working full time and as the sole source of income for their families. The Working Group regards the raising of the minimum wage to the level of a living wage as one of the most appropriate ways both to reduce the wage gap and reduce poverty amongst working women. The Working Group welcomes recent efforts by the Government in this regard47.
59. The Working Group is also concerned at the situation of the estimated 2.5 million domestic workers in the US who are overwhelmingly women48, frequently immigrant women49 many of whom are undocumented. During their visit, the experts heard dreadful testimonies from these workers who are victims of verbal and physical abuse and wage theft. The Working Group welcomes the initiatives taken by the CSOs to improve conditions for domestic workers through a domestic workers’ bill of rights50. Wage theft also impacts other low-income and migrant workers (such as manufacturing, construction and some service jobs). The Working Group welcomes the recent increase in the budget of the Wage and Hour Division within the Department of Labor to support investigations.
60. The Working Group recalls that international human rights law requires the establishment of social protection floors for core economic and social rights, provision for paid maternity leave, and the taking of all appropriate measures to produce de facto equality between all women and men in the labour market. It is not for the Working Group to suggest how these minimum standards should be achieved but only to point out how the United States, as economic leader of the world, lags behind in providing a safety net and a decent life for those of its women who do not have access to independent wealth, high salaries or economic support from a partner or family.