National Clothesline

I went to the circus Saturday night. I have a grandson who will be three in June, so I sprang for five front row tickets to see Ringling Brothers Barnum and Bailey Circus.

After the show, my labor lawyer instincts kicked in, and I asked myself what the hierarchy of pay was for the various performers.

One would think that the ringmaster was the highest paid performer, but I suspect that conclusion would be wrong. Certainly P.T. Barnum himself was highest paid in the early days of the circus, but the ringmaster is just another performer who looks good in a top hat. My guess was that he was paid less than the main clown, who opened the show and tormented the ringmaster throughout the show. I thought the clown’s job was harder and required more talent, which probably warranted more money.

Then I thought about the other performers. Should a guy who rides horses get as much as a guy who rides a motorcycle on a tightrope? Is a pretty face and an athletic body a bona fide employment qualification that can result in more money? Is danger a factor in setting salaries, or is danger a wage issue only if there is a shortage of people willing to do it?

Setting wages is always a tricky issue for an employer. Supply and demand is always a huge consideration, and the wages of current employees must also be taken into account. It is not unusual for an employer to hire a new employee at a higher wage than a current employee with similar qualifications and experience, again depending on supply and demand. Of course, that is not illegal per se, but it can create animosity and conflict in the workplace. In some circumstances, it could even be evidence of discrimination.

Many years ago, the EEOC tried to get involved in the salary-setting business by coming up with the concept of comparable worth. If one job has a comparable worth to another, and wage disparities are the result of one of those jobs being considered a “woman’s job,” the EEOC maintained that the lower wages — for example —for nurses (as opposed to garbage collectors) was sex discrimination. Figuring out the comparable worth of two different jobs, however, was a daunting task.

Unfortunately, the Obama Administration is making noises about resurrecting the “comparable worth” argument. So, let’s get back to the circus. There were no female motorcycle riders, so does that make motorcycle riding a “man’s job?” I doubt it.

Riding elephants appears to be a predominantly female job, and being pretty seemed to be an important factor. I saw as many men as women cleaning up after the elephants

Let’s assume, for the sake of argument, that the elephant riders make substantially less than the motorcycle riders. Can you make an argument that they should be paid the same because just as many people go to the circus to see elephants ridden by attractive women than people who want to see seven motorcyclists driving around a metal ball?

If you can, so can the EEOC. Before you know it, we have lawsuits for wage discrimination, and the circus is forced to go out of business.

Of course, there is already the Equal Pay Act, which prevents employers from paying woman less than men for performing the same job, unless there is another reason unrelated to sex for the difference (like seniority). Most employers already know that paying a man more money for the same job is improper in most cases, but what about benefits? Can employers differentiate between employees for things like health insurance?

Generally, pension rules prevent different pension and retirement plans for employees. Different health benefits, however, are proper, if not based on race, sex, age, or other protected classification. I suppose the circus could decide to give health insurance to the clowns but not the acrobats for this simple reason alone — greater chance of injury to the acrobats. In non-circus settings, employers tend to discriminate on benefit payments based on supervisory status. Supervisors are more likely to get better fringe benefits than rank-and-file employees. In most cases, this is proper.

If you are not running a circus, keep the following salary rules in mind:

• Wage differences based solely on race, sex, age, etc., are prohibited.

• Wage differences based on supply and demand are generally proper. Keep in mind, however, how wage differences among similar workers can result in morale problems.

• Fringe benefit differences are normally proper, if not based on illegal discrimination.

• Determine what an employee is worth to your company and pay him or her accordingly. If you do not need a ringmaster or clowns, do not hire them at any price.

• The ringmaster in a non-circus setting, however, deserves the most money.

While wage rates are rarely the cause of discrimination charges, employers need to be prepared for that to change. Reviewing pay policies now could have its rewards.