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INTRODUCTION 1403 I. DATA ON THE RACIAL PAY GAP AND ITS CAUSES 1407 A. The Racial Pay Gap and the Gender Pay Gap 1408 B. The Racial Pay Gap and [...], For several decades, a small body of legal scholarship has addressed the gender pay gap, which compares the median full-time earnings of women and men. More recently, legal scholars have begun to address the racial wealth gap, which measures racial disparities in family economic security and wealth accumulation. Yet a crucial component of both the gender pay gap and the racial wealth gap remains unaddressed in the legal literature: the pay gap between the earnings of White workers and workers of color. Today, all women average eighty-two cents to each dollar men earn, but Black and Latinx workers average only seventy-four cents on the dollar to White workers. Black and Latinx women, affected by both racial and gender pay gaps, average a mere sixty-three and fifty-five cents respectively per White men's dollar. And while the gender pay gap has narrowed, albeit slowly over time, the racial pay gap has grown. Black and Latinx workers now earn less relative to White workers than they did in the late 1970s. The lack of legal attention to the racial pay gap reflects a belief that to remedy the problem would take major social change to dismantle the education, criminal justice, and other systems that lead Black and Latinx workers to disproportionately hold lower paid jobs. While widescale change may be necessary (and still insufficient) to fully close the racial pay gap, more can and should be done to narrow it now. The racial pay gap has worsened despite significant gains in educational attainment by Black and Latinx Americans. Economists have documented that between one-third and two-thirds of today's racial pay gap cannot be attributed to known causes and is due to "unobservable" factors including discrimination. A handful of states have added the protected class of race in recent amendments to strengthen their state law versions of the federal Equal Pay Act. This Article details the scope of the racial pay gap that may be reachable through antidiscrimination law and provides new legal strategies for doing so. Yet beyond strengthening pay discrimination claims, this Article argues for tackling structural pieces of the racial pay gap even as we work toward improving those structures--for example, by limiting the present effects on pay of racially disparate criminal justice and education systems. Recent public reckoning from the #MeToo and Time's Up movements has sparked renewed interest in closing the gender pay gap. The growth of the Black Lives Matter movement in the wake of the killing of George Floyd has drawn attention to the racial wealth gap as part of the legacy of White supremacy. But interest in the equally important--and not insurmountable--issue of closing the racial pay gap has yet to catch on. This Article begins the process of reframing to highlight how confronting the racial pay gap is an essential but overlooked piece of the zeitgeist, key to resolving the gender pay gap for women of color, the racial wealth gap, and income inequality overall.

TABLE OF CONTENTS I. INTRODUCTION 673 II. THE CASE AGAINST MAXIMUM-HOURS LEGISLATION AND OVERTIME PAY FOR EXEMPT WHITE-COLLAR WORKERS 676 A. Repeated Proposals to Limit Work Hours and Expand Overtime [...], Demanding schedules are increasingly the norm for salaried office workers in the United States today, and there is no legal limit to their workweeks. The federal Fair Labor Standards Act of 1938 ("FLSA") is the nation's primary legislation governing wages and working hours, hut it does not require overtime pay for all employees. Instead, several categories of employees are exempt from the FLSA's minimum wage and overtime protections, including certain executive, professional, and administrative employees, colloquially known as "white-collar" workers. Without overtime protections, white-collar workers are vulnerable to mounting workweeks. Despite repeated calls for reform, including specific proposals to rein in working hours for exempt employees, the FLSA has remained largely the same for over eighty years. But amending the FLSA to impose maximum hours or overtime protections may not be the best solution. The very fact that such proposals have repeatedly failed to gain traction in the past suggests that opposing concerns may be valid and that sweeping reforms may not be viable. This Article suggests that we should consider new forms of reform instead. Specifically, we should follow the lead of pay-equity advocates who have responded to the inadequacies of the Equal Pay Act and Title VII by proposing pay transparency regulation as a means of informing and empowering employees and prompting employers to correct gender pay disparities on their own initiative, even in the absence of litigation. In a similar vein, this Article suggests that instead of revising the FLSA to limit hours, the more effective, less intrusive path to shorter workweeks for exempt white-collar workers may be as simple as requiring employers to disclose the hours that their white-collar workers actually work. Requiring employers to compile and disclose working hours could put downward pressure on long workweeks as employers compete in the marketplace to recruit and retain talent and maintain their reputations. This Article is the first to argue that for all the same reasons that pay transparency proposals promise to close a gender pay gap that has persisted for decades, exempt "time transparency" is better suited to produce more reasonable workweeks than command-and-control legislation regarding maximum hours and overtime.

I. THE CONTEMPORARY LEGAL LANDSCAPE FOR ADDRESSING SEX-BASED WAGE DISCRIMINATION 223 A. The Market Force Defense in College Sports 228 B. Challenging Traditional Market Assumptions 232 C. Title IX and [...]