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116 Penn St. L. Rev. 1043 (2011-2012)
Pay Transparency

handle is hein.journals/dlr116 and id is 1051 raw text is: Pay Transparency

Gowri Ramachandran*
ABSTRACT
Pay discrimination, like many forms of discrimination, is a
particularly stubborn problem. In many instances, just as with other
forms of discrimination, it is unrealistic to allocate all the blame and
burden on a single actor, whether it be an employer or employee. Thus,
the traditional civil rights regime in which an individual actor is held
liable for the discrimination does a poor job of dealing with this problem.
I propose an intervention-pay transparency-that would help prevent,
root out, and correct the discrimination in the first place, instead of
relying on after the fact blame and liability.
Pay transparency-the ability for employees to find out what other
employees in their workplace make-is rare outside of public
employment, and cultural norms against talking about one's income may
make the concept anxiety-producing to some readers. Yet, unlike many
other approaches to reducing seemingly blameless discrimination, such
as targeting unconscious discrimination, or potentially counterproductive
debiasing efforts, incentivizing pay transparency can fit very comfortably
within our legal framework. By turning pay transparency into an
affirmative defense to pay discrimination claims, this preventive measure
can be woven neatly into our current approach to civil rights enforcement
and notions of individual responsibility.
* Professor of Law, Southwestern Law School, Co-Editor, Journal of Legal
Education, J.D., Yale Law School, M.A., Harvard University, B.A., Yale College. Thank
you to Kathy Abrams, Anshul Amar, Mario Barnes, Christopher David Ruiz Cameron,
Emilio J. Castilla, Jennifer Chacon, William Cook, Michael Dorff, Zev Eigen, David
Fagundes, Bryant Garth, Tristin Green, Dante Harper, Caleb Mason, Angela Onwuachi-
Willig, Austen Parrish, Nicole Porter, Camille Gear Rich, Angela Riley, Gary Rowe,
Patrick Shin, Dov Waisman, Michael J. Zimmer, and participants at the Fifth Annual
Labor and Employment Law Colloquium for their advice. Joel Beck-Coon provided
excellent research assistance, and the editors of the Penn State Law Review provided
outstanding editorial assistance.

1043

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