GOP Senators Kill Paycheck Fairness Act

By Ralph E. Stone

June 9, 2013

The entire cast of Republican Senators voted June 4 to kill the Paycheck Fairness Act (PFA), equal pay legislation intended to close loopholes and strengthen the Equal Pay Act (EPA), first signed into law by President Kennedy 50 years ago.

The vote was 52 to 47 with all Republican Senators voting against the legislation. Passage of the PFA would have been a much needed 50th anniversary present to American women, indeed to all Americans.

The EPA provides, among other things, that “No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility.”

Upon signing the EPA, President Kennedy proclaimed the bill “affirms our determination that when women enter the labor force they will find equality in their pay envelope.”  When President Kennedy signed the EPA, women who worked full-time, year-round, made 59 cents on average for every dollar earned by men. Today, women who work full-time, year-round, make 77 cents on average for every dollar earned by men.

Since its enactment, the Equal Pay Act has never been updated or strengthened.

The PFA, introduced in both the House (H.R. 377) and the Senate (S. 84) would have updated and strengthened the EPA in important ways.

The PFA changes to the EPA can be found in the January 2013, How the Paycheck Fairness Act Will Strengthen the Equal Pay Act fact sheet by the National Women’s Law Center.

Here is a summary of the PFA from the fact sheet:

First, it would have improved EPA remedies by allowing prevailing plaintiffs to recover compensatory and punitive damages.  Now the EPA provides only for liquidated damages and back pay awards, which tend to be insubstantial. The change would put gender-based wage discrimination on an equal footing with discrimination based on race or ethnicity, for which full compensatory and punitive damages are already available.

Second, the PFA would have allowed an EPA lawsuit to proceed as a class action lawsuit in conformity with the Federal Rules of Civil Procedure (FRCP).  Now, it is very difficult to bring EPA suits as class action lawsuits because the EPA was adopted prior to the current federal class action rule and requires plaintiffs to opt in to a suit. Under the FRCP, class members are automatically considered part of the class until they choose to opt out of the class.

Third, the PFA would generally prohibit employers from punishing employees for sharing salary information with their coworkers. This change would have greatly enhanced employees’ ability to learn about wage disparities and to evaluate whether they are experiencing wage discrimination.

Fourth, under the EPA, when an employer is found to be paying female employees less than male employees for equal work, the employer may assert an affirmative defense that the pay differential is based on a “factor other than sex.”  The PFA would have tightened this affirmative defense so that it can excuse a pay differential for men and women only where the employer can show that the differential is truly caused by something other than sex and is related to job performance and consistent with business necessity.

Fifth, under the EPA, in order to determine that there is wage discrimination, a wage comparison must be made between employees working at the same “establishment.” Some courts have interpreted this to mean that wages paid in different facilities or offices of the same employer cannot be compared even if the employer is paying workers different salaries for the same work. The PFA clarifies that comparisons may be made between employees in offices in the same county or similar political subdivision as well as between broader groups of offices in some commonsense circumstances.

Sixth, the PFA would have required the EEOC to survey pay data already available and issue regulations within 18 months that require employers to submit any needed pay data identified by the race, sex, and national origin of employees. These data would enhance the EEOC’s ability to detect violations of law and improve its enforcement of the laws against pay discrimination.

Finally, the PFA would have reinstated the collection of gender-based data in the Current Employment Statistics survey. It sets standards for conducting systematic wage discrimination analyses by the agency that oversees the nondiscrimination and affirmative action obligations of federal contractors. The PFA also would have directed implementation of the Equal Opportunity Survey, a vital tool for detecting wage and other types of discrimination.

In the last forty years, the number of full-time working women in the U.S. increased from about 14 million to more than 43 million.  Equal pay is not simply a women’s issue.  Families of these working women increasingly rely on their wages to make ends meet.  When women bring home less money each day, it means they have less for the everyday needs of their families.

Hopefully, women will remember this vote at the next election.

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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