ZILBERMAN.DOCX (DO NOT DELETE) 2/7/2020 8:50 AM Pay Her More! How Sex and Motherhood Play a Role in the Unequal Pay of Women on the World Stage RAQUEL S. ZILBERMAN* TABLE OF CONTENTS I. INTRODUCTION ........................................................................................296 II. BACKGROUND..........................................................................................298 A. The Progression of Women’s Rights: Increasing Economic and Political Opportunities...........................................298 B. The Motherhood Penalty: Career Costs of Bearing Children ...........................................................................300 III. APPLICABLE LAW & CASE STUDIES .........................................................304 A. The United Nations ........................................................................305 B. Iceland ...........................................................................................306 1. Equal Pay for Equal Work......................................................307 a. Applicable Law ...............................................................307 b. Analysis...........................................................................307 2. Equality in the Board Room....................................................308 a. Applicable Law ...............................................................308 b. Analysis...........................................................................309 3. Paid Family Leave..................................................................309 a. Applicable Law ...............................................................309 b. Analysis...........................................................................310 * Raquel S. Zilberman, J.D. Candidate 2020, University of San Diego School of Law. Special thanks to Professor Orly Lobel, for her mentorship and guidance, and my Comment Editor, Mariah Witt, for her unwavering support and feedback. And to my parents, who have shaped me into a strong-willed woman and have always allowed me to bounce ideas off of them. 295 ZILBERMAN.DOCX (DO NOT DELETE) 2/7/2020 8:50 AM C. Rwanda ..........................................................................................311 1. Gender Equality Equals Pay Equality ....................................312 a. Applicable Law ...............................................................312 b. Analysis...........................................................................313 2. Equality in Government Representation .................................314 a. Applicable Law ...............................................................314 b. Analysis...........................................................................314 3. Paid Maternity Leave..............................................................315 a. Applicable Law ...............................................................315 b. Analysis...........................................................................315 D. The United States...........................................................................316 1. Failing to Create Equality ......................................................317 a. Applicable Law ...............................................................317 b. Analysis...........................................................................320 2. Ban the Box.............................................................................321 a. Applicable Law ...............................................................321 b. Analysis...........................................................................324 3. Why the United States Trails Behind ......................................325 IV. PROPOSED SOLUTION ...............................................................................327 I. INTRODUCTION “In Poland, women earn 91 cents to every dollar a man earns.”1In Israel, 81 cents.2 In the European Union, 84 cents.3 “In South Korea, it’s just 65 cents.”4 “In the United States, that figure is 80.5 [cents] according to the Census Bureau—and the gap is even higher for American women of color.”5 Women are paid less than men around the world.6 Whether or not it is due to the motherhood penalty7 or perceived lack of ambition or intelligence, in order to lessen the pay gap for women in professional industries such as medicine, law, and business the global community needs to enact better laws—specifically, employment and labor laws regarding gender equality in the workplace—ensuring fair hiring practices for women. In addition to unfair hiring practices, many women do not even apply for higher paying 1. Lexie Schapitl, Pay Discrimination Only Explains Part of the Gender Wage Gap, VOX (Sept. 7, 2018), https://www.vox.com/2018/9/7/17828964/gender-wage-gap- explained-netflix[https://perma.cc/QEZ6-6SJZ]. 2. Id. 3. Tara John, Iceland Makes Equal Pay the Law, TIME (Jan. 4, 2018), http:// time.com/5087354/iceland-makes-equal-pay-the-law/[https://perma.cc/B6PY-BEK5]. 4. Schapitl, supra note 1. 5. Id. 6. See Schapitl, supra note 1; see John, supra note 3. 7. “Motherhood penalty” refers to working mothers who experience additional disadvantages compared to non-mothers. The concept will be further analyzed in the Background section of the Comment, infra Section II.B. 296 ZILBERMAN.DOCX (DO NOT DELETE) 2/7/2020 8:50 AM [VOL. 21: 295, 2019] Pay Her More! SAN DIEGO INT’L L.J. jobs, because they believe they are unqualified or will not be given an equal opportunity. Women’s employment efforts, or lack thereof, worsen the already present gap. Unfortunately, simply mandating equal pay for men and women will fail to resolve the issue. In the United States, laws and regulations exist that make it illegal to pay men and women differently for equal work,8 and similar laws exist in many other countries.9 Despite these laws, a pay gap remains on a global scale between men and women.10 Why? The current penalties for violations of these laws are not sufficient to actually deter or prevent unfair unemployment. In January 2018, Iceland implemented a law that will place the burden on employers rather than the employees to prove equality in pay.11 This law will “legally enforce”12 equal pay standards in a new way.13 “[O]vert pay discrimination between women and men” is what typically comes to mind when one thinks about the gender wage gap.14 While women often ask for “equal pay for equal work,” gender discrimination is only responsible for a small amount of the pay gap. “The gender wage gap is also about choice and opportunity. [It is] rooted in [global] social norms about women[,] family [and motherhood which constantly change and evolve—making it] much harder to solve.”15 It is grounded in the way our society has evolved over the last one hundred and fifty years, during which more women started to be employed in jobs traditionally held by men.16 So, why are women around the world paid so much less than men? And what are countries doing to close the gap? This Comment will first present 8. See, e.g., Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56. 9. Jane Searle, What Is Life Really like for Women in Iceland, the World’s Most Woman-Friendly Country?, THE SYDNEY MORNING HERALD (Nov. 2, 2016), https://www. smh.com.au/lifestyle/health-and-wellness/what-is-life-really-like-for-women-in-iceland- the-worlds-most-womanfriendly-country-20161101-gsez8j.html [https://perma.cc/XVZ5- 3SA5]. 10. See, e.g., supra notes 1–6. 11. See Jon Henley, “Equality Won’t Happen by Itself”: How Iceland Got Tough on Gender Pay Gap, THE GUARDIAN (Feb. 20, 2018), https://www.theguardian.com/world/ 2018/feb/20/iceland-equal-pay-law-gender-gap-women-jobs-equality [https://perma.cc/ V25V-6SF8]. 12. Id. 13. Camila Domonoske, Companies in Iceland Now Required to Demonstrate they Pay Men, Women Fairly, NPR (Jan. 3, 2018), https://www.npr.org/sections/thetwo-way/ 2018/01/03/575403863/companies-in-iceland-now-required-to-demonstrate-they-pay-men- women-fairly [https://perma.cc/ZFT3-TYBA]. 14. Schapitl, supra note 1. 15. Id. 16. See, e.g., Equal Pay Act of 1963, supra note 8. 297 ZILBERMAN.DOCX (DO NOT DELETE) 2/7/2020 8:50 AM necessary background information about the evolution of women’s rights and the “motherhood penalty.” It will then evaluate the steps that Iceland and Rwanda have taken to create pay equity between men and women.17 Additionally, it will address the United States’ failure to implement mandatory family leave and efforts to “ban the box”,18 it will propose how the world can comprehensively combine these principles to reform global hiring systems and create equality for women in the workplace. II. BACKGROUND Women’s rights have long been a heated debate. To better understand how far women’s rights have come, and how far we still have to go, we need to briefly look at the history of women’s rights and the role of motherhood in the global society. A. The Progression of Women’s Rights: Increasing Economic and Political Opportunities Women have long been excluded from voting and participating in democracy. Starting at the end of the 18th century, women began to be excluded from some voting democracies in Europe.19 During the 19th century, the question of whether women should be grated a right to vote came to fruition, specifically in Great Britain and the United States.20 “By the early [20th] century, women had won the right to vote in national elections in New Zealand (1893), Australia (1902), Finland (1906), and Norway (1913).”21 In the United States, however, women were