A Challenge to Congress

Snow falls on Capitol Hill in Washington, March 5, 2015.

Endnotes and citations are available in the PDF and Scribd versions.

January marked the beginning of a new Congress, and with it came a new opportunity to respond to the challenges facing American women and their families. In fact, in the recent midterm election campaigns, many candidates took great pains to present themselves as strong on women’s issues, even when their records told a different story. While voters look to lawmakers to follow through on campaign promises and to make progress and find solutions, lawmakers’ campaign rhetoric too often bears little resemblance to reality. Voters therefore need to look beyond words and evaluate action—or inaction—to hold legislators accountable.

These recent efforts by politicians to paint themselves as strong on women’s issues are perhaps partly in response to high-profile failures in the 2012 election cycle. Candidates’ extreme comments and narrow, uninformed views about women and about deeply personal concerns such as rape and reproductive health care alienated many voters in 2012 and derailed more than one candidate’s aspirations. Thus, we saw a change in approach in 2014, with many candidates’ talking points seemingly focused instead on appearing responsive to the issues that women consistently say matter to them most, including equal pay, workplace flexibility, and quality health care services.

Despite 2014’s supportive campaign rhetoric, the first test for this Congress and its new leadership has come and gone, and the early results were not promising. In January and February, virtually none of the incoming majority’s actions resulted in moving forward on or considering any of these key economic and health priorities for women in an effective or a comprehensive way. Instead, the women’s issues topping the majority’s apparent to-do list were mostly about constraining a woman’s access to reproductive health care, particularly abortion services—a frequent and familiar target. The breadth and depth of issues facing women and their families—such as earning fair wages, finding affordable child care, locating the right doctor, obtaining a predictable work schedule, and being able to take time off to care for an aging parent or a sick child—were noticeably absent from the incoming leadership’s opening agenda.

This issue brief focuses on the concrete steps lawmakers can take to move beyond the rhetoric and toward action to address the challenges facing women and to pursue the policy solutions needed to improve the lives of women and families. It details four areas critical to women’s success—equal pay, work-family supports, early childhood and child care programs, and women’s health—all issues that a significant number of lawmakers claimed as priorities during their campaigns. These issues are not merely “women’s issues.” Rather, because women provide care and support to their families at all stages of life, these issues affect overall family stability and economic security.

Given these and myriad other responsibilities, women are looking to Congress to provide bold approaches and strategies that can decisively address the challenges they face—solutions that are rooted in the core American values of fairness, hard work, and an equal opportunity to succeed. These must be solutions—not just rhetoric—and should include: expanded access to paid leave and paid sick days; greater pay transparency and more opportunities in higher-paying jobs; flexible work arrangements and scheduling predictability; affordable child care and greater investment in early learning programs; patient protections to ensure confidential discussions with health care professionals without outside interference; and improved overall quality of jobs. These are only some of the actions that lawmakers should explore to make a genuine difference in women’s lives.

Strengthening equal pay protections

Women consistently identify equal pay as a top priority. The need to be paid fairly for equal work is critical, not simply for reasons of fairness or personal fulfillment but also because women are playing an increasingly central role in their families’ economic security. More than 6 in 10 women are the primary, sole, or co-breadwinners for their families, and their contributions are essential to make ends meet. But women, especially women of color, disproportionately work in lower-paying jobs, many of which pay at or near the federal minimum-wage level. The recent debates in Congress about equal pay, however, have largely devolved into a rigidly partisan war of words that includes too little substantive discussion about why equal pay matters in the real world.

Amanda McMillan worked as an office manager, handling sales and managing accounts for a company in Mississippi. As part of her job, she frequently saw personnel records, and she learned, much to her surprise, that she was making significantly less money than her male counterparts in the external sales positions. She asked whether she could apply for one of the external sales jobs—which involved exactly the same duties but was performed on the road rather than from a desk—but was told that the job was not appropriate for a woman. After repeatedly being denied the opportunity to apply for the higher-paying job, she filed a complaint with the Equal Employment Opportunity Commission. An investigation later confirmed that she had been subjected to illegal pay discrimination, and her company eventually agreed to a monetary settlement.

This story is illustrative of the challenges that many women—and men—face when they confront pay discrimination. Information about pay is often closely held or kept confidential, making it hard for employees to uncover the fact that a pay disparity exists or to determine the reason for that disparity. Additionally, many offices have a workplace culture—and, in some cases, an explicit policy—that prevents employees from discussing their pay at work. Even when a pay difference is discovered, it is difficult for employees to navigate the legal process to hold their employer accountable.

There are concrete actions that Congress can take to make a real difference in fighting the culture of secrecy that allows gender-pay disparities to persist. No one should be allowed to create a workplace culture of fear or deception that shields discrimination or prevents it from coming to light. Nor should an employer be able to institute rules that effectively operate as barriers to challenging discriminatory practices. Congress should make it clear that an employer cannot retaliate against, penalize, or dismiss a worker who discusses his or her pay with colleagues. Given that, by some estimations, as many as 51 percent of all workers are employed in workplaces where discussing wages and salary is either discouraged or prohibited, this action could go a long way toward greater pay transparency and creating a more open work environment.

Furthermore, at the heart of combating pay discrimination is ensuring vigorous enforcement of existing laws, including the Equal Pay Act of 1963. This law requires that men and women in the same workplace receive equal pay for equal work. Enforcement agencies charged with upholding the most basic legal safeguards against pay discrimination should have every tool at their disposal to investigate and challenge discriminatory conduct so that they can maximize their capacity to deter and eliminate illegal activities. To support this work, lawmakers should require the collection of pay data from employers; these data could be used by enforcement officials to aid in the determination of where to target their enforcement efforts. Because companies already maintain pay data, this policy could be shaped to impose minimal financial and logistical burdens on employers.

Congress also should be exploring ways to strengthen the Equal Pay Act. It has been difficult to achieve the goals of the law while holding employers accountable for pay disparities because of how some courts have interpreted its requirements. For example, particular courts have allowed employers to justify pay disparities for almost any reason, as long as the reason is not explicitly based on sex. As a result, reasons completely unrelated to a specific job or an applicant’s actual qualifications—such as an applicant’s prior salary—could be used to replicate and reinforce unfair pay differences that stem from entrenched biases about the value of women’s work. Lawmakers should take steps to close this loophole and to make clear that employers should have a credible reason related to their business, the job in question, or an applicant’s qualifications when they make pay decisions.

In addition to challenging discriminatory pay practices, Congress should join a growing number of states across the country and take action at the federal level to raise the minimum wage. Such action would particularly help women—who are more likely to be minimum-wage workers—provide much-needed support for their families.

Securing equal pay for women and men requires commitment—to enforcement, to promoting fairness and transparency in pay practices, and to eliminating obstacles that could thwart the ability of women and men to enjoy the full promise of the Equal Pay Act’s protections. Lawmakers can play a vital role in advancing these objectives through concrete steps that demonstrate sincere support for equal pay.

Pursuing solutions to resolve work-family conflicts and to strengthen families

Families of all races, ethnicities, and income levels struggle with the competing demands of work and daily life—from figuring out caregiving arrangements when a child is sick, to being able to take a parent to a doctor’s appointment, finding an affordable child care provider, adjusting work schedules around child care pickups, dealing with personal illness, and more. Although increasingly, both men and women are grappling with these issues, women often are still expected to take on much of the responsibility of navigating these challenges within their families. The nation needs responsive solutions that are workable for real families—solutions that enable women and men to fulfill their work obligations and to ensure their families are cared for without putting their economic stability at risk. This is particularly critical for low-income families and families of color, who are both less likely to have access to work-family policies through their employers.

Providing greater access to paid leave in the form of paid sick days and paid family leave is one strategy that an increasing number of states and cities are pursuing to respond to these challenges. Paid leave can address several equally important caregiving, workplace, and economic objectives. It enables women and men to get the care they need for their families or for themselves, gives employers a manageable way to accommodate employees’ work-family demands, and provides families a level of income support that ensures they are not pushed into economic ruin when life events interrupt work. In addition, paid leave has been proven to enhance retention, productivity, and office morale. There are important actions that Congress could take at the federal level to support and complement current state and local efforts.

Expanding access to paid sick days to promote healthy families

Both employers and employees can benefit from the adoption of workplace policies that provide workers with a minimum number of paid sick days per year. Makini Howell—the executive chef and owner of Plum Restaurants, a family-owned small business in Seattle that has approximately 50 employees, argues that the costs of providing paid sick days are a small burden given the increased employee loyalty, reduced turnover, and good standing within the community. In her words, “The benefit, the longevity, the employee retention, is priceless in the end.” Howell makes clear that her company’s paid sick policy fosters a culture of positivity and productivity, and the mutual understanding that family matters. At the White House Summit on Working Families last June, Howell said, “As a female business owner of color, I bring my entire self to my business and that means how I treat my workers. … We are able to grow our business because we create a lot of good will which goes directly to our bottom line.” In 2011, Howell worked with The Main Street Alliance, a state and local small-business coalition, to pass Seattle’s paid sick days law, which allows employees to accrue up to five paid sick days per year.

Paid sick days policies offer a practical solution to help employers and employees deal with inevitable health challenges in a way that can fuel better health outcomes, more economic stability, and greater productivity. Yet despite these benefits, more than 40 million workers are unable to take a single day off to recover from an illness or to care for a sick child or family member because their employers provide no paid sick days. Low-income women are among the least likely to have access to paid sick days. In fact, while 82 percent of female workers in the top quintile of the income bracket have access to paid sick days, only 14 percent of those in the lowest income bracket are entitled to the same benefits. Although there is growing interest in paid sick days across the country, as of February 2015, only 3 states and 17 cities currently guarantee sick workers the ability to earn paid time off. A recent study found that among 22 advanced economies, the United States is the only country that does not guarantee its workers access to paid sick days or longer-term medical leave at the national level.

No sick employees should have no option but to go to work—potentially growing sicker and spreading illness among others. Nor should they have to worry about potentially losing their job or days of pay if they stay home when sick. Likewise, no one should be forced to choose between losing a day of pay—or a job—and leaving a sick child or recovering parent home alone. Congress could help by setting a baseline, uniform, national standard of a minimum number of hours of paid leave that employees could earn and use for medical purposes. Such sick days could be used to recover from an illness; access preventive health care; care for a sick family member; or address the aftermath of sexual violence, stalking, or domestic violence. A uniform rule would give workers a level playing field and make clear that paid sick days should not just be reserved for the most privileged, highly paid employees. It also would establish a basic standard across all jurisdictions that employers could rely on, rather than the patchwork of policies that currently exists.

Expanding access to paid family and medical leave to support caregiving

Most families at some point will grapple with events that require care or caregiving support over a longer period of time, such as the birth or adoption of a child or recovery from a serious medical procedure. When Jason and Kristi Butkowski of New Jersey learned that their twin girls would be born two-and-a-half months before their due date, they were in a state of shock. Babies born prematurely can require months of special care, and neither parent had any plans to exit the labor force. After the Butkowskis’ doctor told them that the babies would not be healthy enough to attend day care for six months after birth, the couple relied on New Jersey’s paid family and medical leave insurance program to receive income support while using their medical leave. To make it to the six-month mark, the couple first relied on Kristi’s paid leave allotment, then Jason’s. “Paid Family Leave, at its core, is about respect for working families—working moms and dads caring for a newborn child or children, working sons and daughters caring for an ill parent, working husbands and wives caring for an ill spouse or partner… it’s the right thing to do,” Jason blogged recently for the U.S. Department of Labor.

Without the New Jersey paid family and medical leave program, the Butkowskis would probably have been out of luck. Only 12 percent of private-sector workers in the United States have access to paid family leave through their employers, and fewer than 40 percent have access to medical leave through job-provided short-term disability insurance. The United States is one of only two countries in the world that does not provide paid maternity leave for women who need time off to recover and care for a new baby after giving birth. Furthermore, access to paid family leave in the United States differs sharply by income bracket, with the highest-paid workers having much greater access to such leave than the lowest-paid workers.

The Family and Medical Leave Act of 1993 is the only law at the national level that offers family and medical leave to eligible workers. The law provides for up to 12 weeks of unpaid, job-protected leave, but under its eligibility requirements, almost half of all U.S. workers are not covered. Unless a worker lives in one of the three states that have a paid family and medical leave program, there is a good chance that she or he will be forced to choose between bringing home a paycheck and getting and/or providing much-needed care.

A national paid family and medical leave insurance program is a solution that would make an enormous difference, not only for employees but for employers as well. Access to paid family and medical leave has been shown to greatly improve women’s ability to remain in the workforce, and companies have seen dramatic improvements in retention of female employees after adopting expanded paid leave policies. For example, Google reported that the attrition rate of its female employees after giving birth decreased by 50 percent after the company increased the maternity leave it offered from three months to five months and made it fully paid. Similarly, Ernst & Young LLP found that it was able to nearly close its gender retention gap after implementing workplace flexibility policies, including a robust paid family and medical leave program.

Congress should be a leader and take steps to provide broader access to paid family and medical leave to cover all workers so that both women and men are better able to meet the needs of their families and continue to be productive workers. An effective program would be comprehensive and cover a diverse range of needs for a sufficient length of time; offer the same protections for all families, including adoptive families and nontraditional families; provide enough income so that leave-taking is affordable; and ensure that workers could take leave without risking negative consequences on the job.

Pursuing workable paid leave programs such as paid sick days and paid family and medical leave should be a top priority for Congress because such strategies respond precisely to the multifaceted dilemmas families often face. Paid leave helps ensure that families can get much-needed care, stay connected to the workforce, and remain economically stable. Narrower, alternative approaches that do not address these three distinct needs, or that force families to choose between having care and staying economically afloat, are incomplete nonsolutions that may make matters worse for families. For example, allowing employees to work extra hours and use those hours later for leave in lieu of pay—a practice often called compensatory time or “comp time”—could cause economic hardships. The reality is that most workers are already stretched for time and money. Telling them that the only way they can have access to leave is to spend more time working without getting paid is not financially feasible for many families. Nor does it provide certainty that the time will be approved when they need it. Lawmakers should be pursuing comprehensive solutions that resolve, rather than exacerbate, the diverse challenges that families face.

Providing greater scheduling predictability and workplace flexibility

For many workers, scheduling predictability and work flexibility are essential to keeping their lives on track. Kay Thompson has worked in New York City at the Macy’s flagship store in Herald Square for almost 20 years, and having a predictable, reliable schedule has been central to her success at work and at home. Thompson’s store gives her a full-time schedule with predictable hours that enables her to earn income and accommodate the needs of her four daughters. She can choose her days off six months in advance and shape her work schedule so that she has time to spend with her children and the flexibility to take one daughter to a specialist for her asthma. Even during the busy holiday season, she receives her schedule at least three weeks in advance, which allows her to rearrange her hours. She credits this flexible and predictable scheduling as one of the reasons she has remained at Macy’s for so long. At the White House Summit on Working Families, she told the audience, “While I am grateful for my work situation, I want all retail workers to experience a sustainable working environment where family friendly workplace scheduling is a priority for all companies.”

Thompson is very fortunate because her job offers a degree of flexibility and reliability that many hourly and shift workers do not have. Virtually all workers have competing life demands that sometimes clash with unpredictable or inconsistent work schedules or other unexpected work obligations. Yet many U.S. workers have too little flexibility in when and where they work. Some are subject to “just-in-time” scheduling practices that can require workers to arrive or to go home in the middle of a shift without advance notice. These problems are particularly acute for hourly workers and workers of color, who are both more likely to experience these practices than other workers. When workers lack predictability or flexibility in their schedules, caregivers—often women and mothers—can find themselves in untenable situations that impair their ability to get to work and to ensure that their families are safe and have the care they need.

There is action Congress can take to promote greater workplace flexibility and more predictable, fair scheduling practices. Extending to employees the right to request a flexible work arrangement is a strategy that has been used at the state level to offer employees an opportunity to, at the very least, have a conversation with their employer about potential options for creating more flexibility. Even if employees are not guaranteed a specific outcome, such a proposal can encourage a discussion that helps foster greater transparency and responsiveness to employee and employer needs. Furthermore, Congress can take steps to limit disruptive, inefficient, or unpredictable scheduling practices. Requiring employers to provide advance notice of scheduling changes within a certain time period and ensuring that employees are appropriately compensated when they are called in for work—even if the shift ends early—are both actions Congress could pursue to create more consistency in scheduling practices.

Building a system of quality, affordable child care

The majority of parents with young children are working. Among children under age 6, 65 percent have either a single working parent or two employed parents. As a result, the need for affordable, quality child care is greater than ever. When Shawnta Jones became a mother at age 17, she struggled with how and where to find reliable and affordable care for her children while she worked and attended classes to earn an associate’s degree. She knew she would not be able to pay for child care services out of pocket and still balance her finances. Although she knew that completing her education would help her provide for her family, she doubted whether she would be able to graduate unless she found a safe place for her children while she was at work or in school. Fortunately, Jones received a child care subsidy and was able to find a high-quality child care program for her three children, making copayments for this service based on her income. Jones is now working toward her bachelor’s degree, grateful for the ability to pursue her goals and simultaneously provide for her children. She no longer needs a child care subsidy because she can afford to pay for child care on her own. “[Having affordable child care] helped me be responsible, balance my finances, [and] provide for my family,” she told an audience during a September 2014 event on women’s economic security at the Center for American Progress.

Jones was lucky to find a child care subsidy that allowed her to afford a quality program. Just one in six eligible families receive a child care subsidy, and in 2012, nearly half of all states had waiting lists or needed to freeze intake to account for the mismatch in funding and people eligible. Even when families receive a child care subsidy, it is often too low to allow them to afford high-quality child care. The average child care subsidy only covers 60 percent to 70 percent of the average cost of a child care center or family child care home. Head Start, a program designed to prepare poor children for school and to promote family economic security, serves only half of all eligible preschool children and less than 5 percent of eligible infants and toddlers. The program also typically operates on an academic schedule that does not cover a full working day or the summer months.

Lack of public funding leaves many families struggling to find a child care solution on their own—a task that is nearly impossible for low-income and middle-class families. The average cost for two children in center-based care exceeds median rents in every state and exceeds housing costs for homeowners with a mortgage in 23 states and the District of Columbia. In many cases, the cost of child care even compares to or exceeds that of college tuition. In 2013, the average annual cost for an infant in center-based care was higher than a year’s tuition and fees at a four-year public college in 31 states and the District of Columbia. When families cannot find affordable child care, parents have few options and may leave the workforce altogether or use unregulated—and often unsafe—child care.

In order to make child care more affordable for all low-income and middle-class families, Congress should pursue substantial investments in child care and early learning programs. Passing legislation to expand preschool to serve all 3- and 4-year olds is a critical first step. Congress must also work to overhaul the existing federal child care funding system to provide access to high-quality, affordable child care for low-income and middle-class families. This means greatly expanding resources to serve more families and increasing the assistance levels to pay for quality programs. Finally, Congress should expand Early Head Start access for children ages 0 to 3 to give greater numbers of low-income families access to high-quality, affordable early learning programs. All of these measures would help families secure the care they need without impairing their economic stability and would ensure that their children have the best chance to start life on an even playing field.

Ensuring women’s access to health care

Women’s ability to take charge of their own health, find quality and affordable care, and consult with health professionals confidentially to make informed health decisions is critical. Too often, however, women’s access to health care—especially reproductive health care—has been treated more like ideological football than like an essential cornerstone of women’s overall well-being. What should matter most is gaining a real understanding of the health challenges women face and identifying concrete solutions that can help women lead healthier lives. Consider the story of Yvonne Jones. In 2014, she was in a Philadelphia emergency room with no health insurance and no way to pay for the surgery she needed. Sudden pain had taken her to the hospital, and she was diagnosed with a life-threatening deep vein thrombosis due to an enlarged fibroid. After learning she was ineligible for Medicaid, Jones turned to the health care marketplace, where she signed up for an affordable insurance plan. Her new insurance paid for the surgery and treatment that saved her life, and it now enables her to receive quality health care.

Having consistent, affordable, and comprehensive access to care is vital for women and is at the heart of the Affordable Care Act, or ACA. Before the passage of the ACA, women were often charged 150 percent more for the same insurance as men, rendering coverage unaffordable for many. Under the ACA, insurance companies are now prohibited from engaging in this type of gender discrimination, which is critical to ensuring that women can access the health services they need. Key preventive services, including breast and cervical cancer screening, are covered without any cost sharing such as copayments and deductibles. All forms of contraception approved by the Food and Drug Administration are covered without cost sharing. As a result, women in 2013 saved more than $483 million on oral contraceptives.

In the wake of the ACA’s enactment, however, there have been persistent attacks at the legislative and judicial levels that threaten to undo its critical protections. In June 2014, the U.S. Supreme Court ruled, in Burwell v. Hobby Lobby Stores, Inc., that certain for-profit corporations could opt out of covering some or all contraceptives in their employees’ insurance on religious grounds. That ruling has been invoked by several additional for-profit entities to deny coverage of certain contraceptives. Until the Obama administration issues a final rule to provide alternative coverage options for contraceptives in situations where a company’s owners refuse to include such coverage in their insurance plans, women who work for these for-profit companies will have restricted contraceptive choices. The Court’s decision means that women’s access to important health benefits such as contraception can be undermined based on someone else’s religious preferences. This ruling is an enormous step backward for women. But there are steps Congress can, and should, take to address the religious freedom concerns posed by Hobby Lobby. It can amend the Religious Freedom Restoration Act of 1993 to ensure that no person’s religious practice imposes harm on a third party.

Alternative proposals that ignore the problems created by Hobby Lobby may be little more than an empty gesture. During the midterm elections, many candidates tried to present themselves as committed to defending women’s health, particularly access to contraception. Some candidates known for opposing access to many reproductive health services hastily put forward proposals to make monthly oral contraceptives available over the counter, or OTC, apparently to show that they supported improving access to contraception. But the OTC approach oversimplifies the real cost and access problems created by the Court’s ruling. While OTC oral contraceptives may be available in the future, copayments for oral contraceptives have been one of the main barriers to consistent pill usage in the past. Simply making monthly oral contraceptives available OTC would raise concerns about shifting costs, once again, from insurers to individual women. Before coverage under the ACA, a visit to a clinician to get a prescription for oral contraceptives cost $35 to $250, and the pills themselves cost $180 to $960 per year.

To date, no pharmaceutical company has received OTC approval for monthly oral contraceptives, which would be required before any legislation could be enacted. Therefore, from the perspective of the administrative process, the monthly OTC option is unlikely to be available for several years. Moreover, some of the most effective forms of contraception—including intrauterine devices, or IUDs, and implants—are the most expensive and would not be available OTC because they require visits to clinicians for insertion and follow-up care.

But Congress does have an important role to play in securing protections for women to ensure that they can access the health care services they need. Instead of pursuing efforts to undo the ACA’s protections to reinstate cost sharing for preventive services and the ability of insurance companies to charge women higher premiums, Congress should protect access to contraception and other preventive services without cost sharing so that all women can afford the method best suited for them.

This past election season also saw many candidates try to downplay their records of opposition to women’s abortion access to ease concerns that they would push for further restrictions in the future, such as “personhood” measures that would ban abortion in all cases. Some of these candidates are now lawmakers in Congress, and they must be measured by their actions, not their campaign promises. The new congressional leadership has not taken any steps to ensure access to comprehensive women’s health care, including contraception, which is supported by the vast majority of Americans. In contrast, since the start of the 114th Congress in January, members in both houses have introduced more than 20 bills to restrict abortion and erode existing health protections for women. Currently and in most cases, federal funding can only be used to pay for abortions in cases of rape, incest, or life endangerment. Congress should not further restrict access to abortion care in public or private insurance coverage but should instead lift restrictions so that all women—including those who are veterans or serving in the military or are covered by Medicaid insurance—have equal access to a full range of reproductive health care options.

Conclusion

After the campaigns end and the elections are decided, the real work begins. If the 2014 campaigns are any guide, much of the rhetoric we will hear throughout the coming congressional session will tout how well lawmakers can address women’s needs. In this highly charged, partisan climate, what can get lost are the real experiences and everyday struggles facing women and their families.

Women and men expect lawmakers in Congress to work together to pursue policies that can improve the lives of working families across the country. Success should be measured not by rhetoric or poll-tested slogans but by concrete actions and, ultimately, by results that respond to the challenges facing women and their families. There are policy solutions that can make a real difference—from ensuring fair pay practices, to easing work-family conflicts, increasing the availability of high-quality child care, improving women’s access to health care, and more. Lawmakers have an important role to play in moving from promises to progress to help these solutions become reality. It is time to see if the new Congress is up to the challenge.

Jocelyn Frye is a Senior Fellow at the Center for American Progress. Milia B. Fisher is a Research Associate with the Women’s Initiative at the Center. Donna Barry is the Director of the Women’s Health and Rights Program at the Center.