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Unpublished Paper
The Market Defense
ExpressO (2009)
  • Sharon Rabin-Margalioth
This Article sheds a new light on the controversial issue whether employers should enjoy a market defense when confronted with claims of pay inequality. The conventional view that causation between group membership and adverse treatment is the essence of any discrimination claim enables employers to argue successfully that pay disparities are caused by market forces such as individual negotiation skills and not sex discrimination. The legitimization of the market defense contributes to the gender wage gap among employees performing equal work. In this Article, I argue that in most cases market justifications for pay disparity in equal pay for equal work litigation should be rejected. I then propose an alternative model of gender discrimination, which is not based on causation. In Equal Pay Act (EPA) claims employers defending their disparate compensation decisions should be restricted to justifications relating only to individual ability and productivity. Currently EPA jurisprudence is under-theorized. In a series of decisions the courts interpreted the EPA to emulate Title VII of the Civil Rights Act (1967) models of discrimination which are based on strong causation. This enabled employers to make use of the market defense to severe the causal link between sex and compensation. But in January 2009, Congress passed The Paycheck Fairness Act. This bill, amending the EPA, clarifies that the scope of the employer’s affirmative defense is narrow and does not include variants of the market defense.
  • Discrimination,
  • Paycheck Fairness Act
Publication Date
August 12, 2009
Citation Information
Sharon Rabin-Margalioth. "The Market Defense" ExpressO (2009)
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