Pay gap? Yes. Discrimination? Rarely.

Last spring I had the honor of talking about equal pay legislation with Stephanie Thomas on her podcast The Proactive Employer. My counterpart and the star of the show was Lilly Ledbetter.

Yes. That Lilly Ledbetter. Lilly Ledbetter of the Lilly Ledbetter Fair Pay Act. The Lilly Ledbetter who wore a red suit and stood beside President Obama when he signed the Fair Pay Act into law. Ms. Ledbetter had recently published her book, Grace and Grit: My Fight for Fairness and Equal Pay at Goodyear and Beyond.

Yes, I am serious! The Lilly Ledbetter who is standing right behind the President!

Stephanie is always great, and Ms. Ledbetter herself was a gracious and charming lady, and our half hour flew right by. If she hadn't lived two states away from me, I would have invited her over for dinner.

Ms. Ledbetter strongly believes that pay discrimination against women is rampant. And a women's advocacy group has recently come out with a study showing that, between 2011 and 2012, women's relative pay has dropped from about 82 cents for each dollar that men earn to only about 81 cents on the male dollar.

At the same time, we have extremely well-compensated female super-executives like Sheryl Sandberg of Facebook saying that women aren't as successful, not because men are holding them back, but because women don't want success enough, or something like that, and Marissa Mayer, CEO of Yahoo, saying she's not a feminist and abolishing telecommuting for her employees while building herself a baby nursery next door to her office. (Sisterhood is powerful, baby! This is what we fought for!)

THE PRICE WAS WRONG: I had reported earlier on model Brandi Cochran's $7.7 million verdict in a pregnancy discrimination lawsuit against the long-running TV game show The Price Is Right. The trial judge has now granted the show's motion for a new trial, saying that he gave an erroneous jury instruction according to a California Supreme Court decision that was issued after the trial. I'll continue to keep you posted on this and all daytime-TV-related employment law.

So, with all apologies to Lilly Ledbetter, as we approach the sixth anniversary of the Supreme Court's decision saying that Ms. Ledbetter's case against Goodyear was untimely (a decision that Congress overruled by passing the Ledbetter Fair Pay Act), and the 50th anniversary of the Equal Pay Act, and as the Office of Federal Contract Compliance Programs says in so many words that it's going to keep on scrutinizing contractors' pay in every way possible until it finds a violation, I'm going to be contrary: here are five reasons why I think the "gender pay gap" is mostly baloney.

Res ipsa loquitur.

1. The "X cents on the dollar" argument is fallacious. This statistic measures all women in the workplace against all men in the workplace. It takes nothing into account except sex and pay. That's it. It doesn't control for anything else that might affect a person's pay, such as educational level, years in the workforce, skill or experience level, willingness to travel or do "dirty" work, or anything. Just sex and pay. So it doesn't tell you much of anything about discrimination. At most, it's the first piece in a 2,000-piece jigsaw puzzle. Here are a few of the other 1,999 pieces:

Problem solved! My work here is done!

2. Statistically speaking, men are disproportionately willing to work heavy, dirty, dangerous jobs in bad conditions with long or inconvenient hours. Because these jobs totally stink aren't very pleasant, companies are sometimes willing to pay quite a lot to anyone who is willing to do them. Companies don't have to do that with nice, clean, 9-to-5, Monday-through-Friday office jobs, or even "pink-collar" jobs, which might have inconvenient hours and be stressful in some ways but don't usually involve danger or heavy lifting.

3. Statistically speaking, women are more likely to start their work lives later and interrupt their work lives. (Remember, we are talking "statistically.") The work force is still full of women my age and older, who unlike today's young women, may not have jumped right into their chosen careers, often because we were working at dead-end jobs for a few years while our husbands went to professional school or threw themselves headlong into their own careers. And/or we were having babies. (In my own case, I didn't even start law school until I was 30 and already had one child. And I'm not that unusual.) Even if we were working, we quit* when we had babies. Our husbands never did -- male "moms" are a relatively new phenomenon.

*Quit working outside the home. Moms and dads who stay home, of course, do a ton of work.

So, if you're young, remember that the "pay equity" stats include us as well as you, and we have a big pay gap that usually was not a result of discrimination by employers but a result of family choices we made at various stages of our lives. In other words, our choices are bringing down the average for the whole group of working women. Don't you feel better now?  :-)

4. In the most recent recession, the pay gap narrowed somewhat, and do you know why? It's because women were employed while men were unemployed. (Statistically speaking, of course.) That's right -- men were disproportionately affected by the last recession. You may recall that they even called it a "mancession." Most of the jobs that went away were "men's" jobs -- construction, heavy manufacturing, etc. This narrowed the gender pay gap because women were making a little bit of money while many men were not making any money. If the pay gap really is widening again, I hope it's because some of those poor unemployed men have started to find jobs.

5. Even when they're in the workforce, women disproportionately treat their jobs as "secondary" to their spouses' so that they'll have time to devote to their families. (Statistically speaking again, of course.) Just look around you. Count up the women you know who take off work when their kids are sick, assume primary responsibility for taking care of elderly or sick relatives (including their in-laws), move when their spouses get transferred, and say they want a job that they can "forget about" when they go home at night. Now count up the men you know who do these things.

Some might say taking good care of them is as rewarding a career as any.

My guess is that everyone's circle of acquaintances will include a relatively large number of women, and a relatively small number of men, who do. Now -- tell me who do you think is probably going to make more money at work? Would it be the people who consider their jobs "secondary" to the jobs of their spouses, or would it be the people who consider their jobs to be the "primary" jobs in the family? Do I really have to ask? Of course not. And, if that's the way those women want it, then what's the problem?

I can tell you what the problem isn't: it isn't employment discrimination. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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