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Excerpted From: Rachel DiBenedetto, To Shatter the Glass Ceiling, Clean the Sticky Floor and Thaw the Frozen Middle: How Discrimination and Bias in the Career Pipeline Perpetuates the Gender Pay Gap, 29 American University Journal of Gender, Social Policy and the Law 151 (2021) (554 Footnotes) (Full Document)


RachelDiBenedettoWomen crack the glass ceiling, but rarely pierce the surface. When women do shatter the glass, they do so in small strides, achieving minor victories. This glass, an invisible discriminatory barrier, the cultural predispositions filled with gender bias, inhibits women from career advancement--from reaching the ceiling. Many refused to recognize this often unspoken phenomenon until the United States Department of Labor called for action. In enacting anti-discrimination legislation and bridging the gender education gap, women made remarkable headways in overcoming hurdles, yet the roots of the challenge still remain. How can women shatter the glass ceiling if the sticky floor keeps women at entry level, lower paid positions with limited opportunities for career advancement? This same sticky floor characteristically encompasses “pink collar workers”--secretaries, nurses, assistants, and teachers-- typically receive unbalanced gender-based investment. Similarly, how can women shatter the glass ceiling if the frozen middle prevents women from attaining high-ranked positions? The frozen middle, ordinarily ascribed to the slow progression of female career advancement, or rather, women “frozen” in intermediate management positions, hinders a woman's upward mobility. Whether referring to the metaphorical sticky floor or the frozen middle, the underlying issues consolidate to “traditional gender roles, preferential treatment of male candidates, structures that are unsupportive of family-related career breaks, and lack of effective mentors.” Cleaning the sticky floor and thawing the frozen middle will pave the way for women to crack the glass ceiling. “[B]ut changing the culture means nothing if the law doesn't change ... [B]ut the country isn't ready. Change minds first, then change the law.” Luckily, the laws have changed and maybe the country is ready, but minds have not fully changed.

In every argument exploring the sticky floor, frozen middle, and glass ceiling, women ask themselves whether they have done enough. This question consistently surfaces for both women in leadership positions, like former Supreme Court Associate Justice, Ruth Bader Ginsburg, and for any female employee enduring inherent bias. People constantly encourage women to speak up or fight harder. Women do bear some burden to overcome these barriers, but why should they have to overcome them? This is not to say women should not strive to push past obstacles should they elect to do so. However, breaking down these invisible barriers to eliminate subtle discrimination and bias at each stage in the career pipeline will desegregate occupations. In providing women with a choice free from these obstacles, occupations will become less gender-centric. Accomplishing this goal will disassociate traditionally female dominated professions with lower earned wages and historically male dominated occupations with higher-earned wages. Further, once these professions lean towards a more equal gender makeup, the workplace discrimination and bias will likely become more apparent or ideally, nonexistent.

The Supreme Court made tremendous strides in acknowledging gender- based assumptions to promote gender equality amongst jury selection, educational opportunities, employment positions, parental roles, payment contributions, and litigation damages. Aside from the Court interpreting equal protection to incorporate gender-based clarifications explicitly pursuant to the fourteenth amendment and implicitly to the fifth amendment, the nineteenth amendment serves as the only Constitutional recognition of a right on “account of sex”--granting the women the right to vote. In an attempt to bridge the gender gap, Congress has passed federal legislation incorporating sex as a protected class, while states have concurrently enacted laws prohibiting sex based employment discrimination. Though the Court has begun to recognize sex discrimination as a fourteenth amendment classification, thus, acknowledging gender inequities, many still remain skeptical about gender-wage disparities.

The gender pay gap is a myth, a fallacy, a non-existent notion. Opponents debunk the gender pay gap and rebut each claim with one word: choice. This Article does not discount a woman's desire to take on a “less demanding” or lower paying position. Instead, the core issue turns on whether this choice is an autonomous one, meaning one in which a woman fully decides her profession absent any outside influence; a choice free from gender discrimination, bias, and norms. Challengers repeatedly indicate that the gender pay gap ignores a woman's education and experience. However, the notion acknowledges just that. These early onset imbedded barriers and instilled impressions guide young adults' choices, leading to lack of equal representation or prolonging workplace discrimination. This Article will push beyond existing legislation reform--whether enacted or proposed--to touch on how early onset gender bias--sociocultural, educational, or environmental factors--contribute to unequal representation in certain fields, consequentially preserving the gender-pay gap. These “constraints” reflect traditional notions of gender classifications, influencing young girls and men to purse certain academic subjects or particular athletic prospects. While each subset tremendously affects a woman's career choice, this piece briefly highlights occupational segregation as one of the strongest driving forces behind gender wage inequity. But why are women in dissimilar professions or rather, female-centric careers seemingly undervalued? This Article does not delve into how the capitalistic system deems a finance manager's position more valuable than an average schoolteacher's position. Rather, this piece elucidates the unequal representation in male dominated professions, perpetuating the gender pay gap. This Article focuses on breaking down decades of traditional gender roles, intertwining these permitted opportunities with gender bias to increase representation for both genders within all professions. The unequal opportunity notion does not necessarily reflect physical present barriers, but instead turns on institutional discrimination, inherent gender bias, and gendered-social constructs.

Part I of this Article will begin by examining the historical development of case law and enacted legislation for gender pay inequity. Part II will highlight how gender disparities in salary distributions within a specific controlled group surface through workplace discriminatory practices and latent contractual obligations. Part III will explore how the gender pay gap in a non-controlled group exists because of an array of factors but focus on institutional discrimination and gender bias--both stemming from gender norms. Section A will highlight how gender stereotypes and lack of equal representation in multiple facets reinforces gender norms. Section B will tackle the career pipeline, specifically addressing how biased academic and athletic programs may guide a student to pursue a profession. Part IV will demonstrate how these guided choices lead to unequal gender representation, thus, perpetuating gender-centered professions. Part IV also will analyze how occupational segregation, driven by aforementioned institutional sexism and reinforced bias partially explains gender wage disparities. Part V will focus on proposed solutions, short term Congressional remedies, and long-term community approaches to increase equal gender workplace representation and in turn, reduce the gender pay gap. In breaking down these social constructs, studies will redirect their focus to address gender issues in a controlled workplace setting instead of contrasting women and men's earnings on account of the profession itself.

[. . .]

Creating the right to file suit on account of gender wage inequity acknowledges ever- present disparities and seeks to remedy discriminatory practices. In control groups, wage inequity often surfaces twofold: (1) writing off women for higher ranked positions--outright gender discrimination and reliance on biased figures--and (2) latent contractual distinctions--initial salary disclosures and revenue seeking opportunities. In non-controlled groups, gender pay inequities stem from an array of factors, but strongly derives from occupational segregation. Aside from the economic issues associated with devaluing certain professions, the gender pay gap exists largely because this segregation exists. Early on set gender roles, lack of exposure, and unequal representation reinforces gender norms outside of the classroom as well as within the educational sector. The former primarily materializes in toy advertising and television programming. Whereas academia, the perpetual gender stigma attached to vocational training, STEM programs, and school athleticism becomes one of an initial, noticeable, gender divisions. Systemic discrimination and overarching bias have become so engraved in the culture that people rarely acknowledge how this subtle messaging holds significant weight. The manifestation of gender stereotypes in these highly significant facets inevitably shape a child's perspective, implicitly contributing to their career pipeline, a series of choices. These professional choices unescapably lead to stark contrasts in demographic representation in historically, gender-centric professions. However, female dominated occupations have become equated with lower median wages. The gender pay gap fundamentally reflects the connotation that women earn less because biased marketing, media, and academics considerably funnels them into lower-paid careers.

In promoting equal participation, these occupations will become less gender segregated. In shifting the narrative from the onset, people will choose their professions less inclined to adhere to antiquated stereotypes. Redirecting this messaging will remove any connotations that a certain profession heavily favors a particular gender and eliminate wage disparities on account of a person's gender. Underlying subtle discrimination in the workplace and highlighting divided occupations is a crucial step in achieving women's economic equality. However, this step does not discount necessary policies to value traditional female occupations, though that remains a separate issue. Now, not only must women continuously strive to overlook unavoidable developmental gender bias, but they must shatter the glass ceiling to consequently achieve equal pay. But to shatter the glass ceiling, humanity must clean the sticky floor, which guides women to traditional pink-collar employment, and thaw the frozen middle, the barrier hindering female advancement. “[C]hanging the culture means nothing if the law doesn't change ... Change minds first, then change the law.” In an attempt to eliminate gender disparities, changing the law generates pragmatic, short-term solutions. But “[c]hang[ing] minds” topples the whole system, bringing about optimistic, long-term results. “[S]tep by step [ ] the realization ... that the pedestal on which some thought women were standing all too often [hopefully will no longer] be a cage.” This first step is the first realization: fixing gender bias will fix occupational segregation and redefine one word, the word choice.

J.D., Brooklyn Law School, B.A., Binghamton University.

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