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Commentary: Bessie Margolin, equal pay champion

Tuesday is Equal Pay Day, an event that began 20 years ago to symbolize how far into the year women must work to earn what men earned in the previous year. While much remains to be done to achieve pay equity, there’s much to learn from the past, including the role played by one woman who was dubbed, in her day, the nation’s No. 1 fighter for equal pay.

In June 1963, President John F. Kennedy signed the Equal Pay Act to outlaw, in his words, the unconscionable practice of paying women lower wages than men. Because Congress added the EPA to the Fair Labor Standards Act, oversight of the Labor Department’s EPA litigation fell to Associate Solicitor Bessie Margolin, who had already spent two decades implementing the FLSA through the nation’s courts, including the 24 oral arguments she personally presented in the U.S. Supreme Court.

Bessie Margolin (Courtesy of Malcolm Trifon)

Bessie Margolin (Courtesy of Malcolm Trifon)

Unlike routine wage and hour cases, Margolin required regional offices to obtain her approval before filing each new EPA case. By June 1966, the department had filed more than a dozen EPA lawsuits in almost as many cities across the country, revealing employers’ artifices and excuses to justify paying women less than men for the same work. That month the department’s lawsuit against a Nevada manufacturer became the first EPA case to go to trial and, just one month later, produced the government’s first victory.

In his decision, the judge quoted the company’s plant manager, who, when warned of the act’s passage, had scoffed that Congress would never pass such a foolish law. Only a few years later, the judge wrote the “foolish” law was before the court for interpretation. The judge found the work performed by the male and female workers was substantially equal and ruled all of them were entitled to the same, higher wages. The case involved only two female employees, but it portended great change for workingwomen around the country and the companies that employed them.

By the summer of 1968 Margolin and her lawyers had approximately 100 EPA cases pending in trial courts in 40 states involving an estimated 5,000 women who worked as tellers and clerks in banks, sales staff and managers in department stores, ticket agents and office accountants for airlines, and assembly line workers producing goods ranging from toy rifles to air conditioners. The Labor Department’s lawyers already had tried a total of 10 EPA cases, adding two more wins and six losses. The trial-court losses did not discourage Margolin; she remembered similar setbacks in the early years of the FLSA that she had managed to reverse.

Landmark ruling

She personally briefed, argued, and won the first and principal appeals taken in EPA cases. One of these may have been Margolin’s single greatest legal victory of her entire career. Although not won on the merits at the Supreme Court, but rather at the 3rd U.S. Circuit Court of Appeals, the Wheaton Glass case – the first EPA case argued to an appellate court – remains a landmark EPA ruling.

A New Jersey manufacturer of special order glass containers, Wheaton employed male and female “selector-packers” who inspected glass bottles and packed them into cartons. Although the men and women worked side by side, performing identical work 80 percent of the time, Wheaton paid the men 21.5 cents (10 percent) more per hour than the women. After a 16-day trial, which Margolin personally supervised, the trial judge agreed with the employer that the male selector-packers were entitled to higher pay largely because they possessed “greater flexibility” to occasionally perform additional duties.

Although the ruling was feared reversal-proof because of its extensive factual recitations informed by two judicial site visits, Margolin was convinced of the legal, if not moral, correctness of her position, and filed an appeal. After two oral arguments, Margolin convinced the 3rd Circuit to reverse the district court by ruling that the term “equal work” required only that the jobs be substantially equal, and by rejecting sex-based group criteria. In May 1970, the Supreme Court denied Wheaton’s petition for review, allowing the 3rd Circuit’s ruling to stand.

The Supreme Court would not hear its first EPA case until two years after Margolin retired in 1972, but she had blazed a trail through the lower courts with a stunning litigation record. She had overseen the filing of 300 EPA lawsuits in 40 states, recovering $4 million for 18,000 employees.

“A great many of us owe her a debt of gratitude for her courage and fortitude,” one Labor Department official said of Margolin. “The work connected with the preparation for Equal Pay Act litigation has, of necessity, been both time-consuming and frustrating.”

Added a colleague: “By almost a one-woman struggle, you have seen the Equal Pay Act through a most difficult infancy and placed it on sturdy legs.”

Bessie Margolin died in 1996, the same year that Equal Pay Day originated. Although the road to pay equity continues to be both time-consuming and frustrating, Margolin’s persistence during the earliest days of the struggle should encourage us all to finish the work, and soon.

Marlene Trestman, a former special assistant to the Maryland attorney general, is the author of “Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin.” She will be speaking about her book at 12:30 p.m. Monday in Room 504 of the Baltimore City Circuit Court’s Mitchell courthouse, sponsored sponsored by the Bar Association of Baltimore City.