114th Congress: Legislative Activity
Introduction of S. 892 and H.R. 1619, the Paycheck Fairness Act
The Paycheck Fairness Act (PFA) was reintroduced in the House and Senate in March as H.R. 1619 (DeLauro, D-CT) and S.862 (Mikulski, D-MD). As of March 4, 2016, the House bill has 193 cosponsors − 192 Democrats and one Republican, and the Senate bill has 44 cosponsors − 43 Democrats and one Independent, who caucuses with the Democrats.
Provisions of the Paycheck Fairness Act
1. The Paycheck Fairness Act will update the definition of a work “establishment.”
The PFA will broaden the law’s definition of “establishment” by stating that wage comparisons may be made between employees who perform substantially equal jobs at any of the employer’s places of business that are located in the same county or political subdivision. This change is needed because many businesses today operate out of multiple offices in the same area.
2. The Paycheck Fairness Act will clarify the “factor other than sex” defense.
The PFA provides that a “factor other than sex” defense must be based on a bona fide, job-related factor such as education, training, or experience that is consistent with business necessity. In addition, it specifies that a factor will not qualify as an affirmative defense if the employee can demonstrate that the employer refuses to adopt an existing alternative business practice that would serve the same business purpose without producing a pay differential. This definition is modeled on the business necessity standard used by courts in Title VII employment discrimination cases.
3. The Paycheck Fairness Act will strengthen the remedies available under the EPA, which will help deter future violations.
The PFA will allow prevailing plaintiffs to recover compensatory and punitive damages. Compensatory damages include out-of-pocket expenses resulting from the discrimination and compensation for non-economic damages such as loss of reputation and mental anguish. Punitive damages would be allowed only in cases of intentional discrimination involving malice and reckless disregard and would not apply in cases against the United States. These proposed changes would put gender-based wage discrimination on an equal footing with discrimination based on race or ethnicity.
4. The Paycheck Fairness Act will update the class action provisions of the EPA.
By adopting the current Rule 23 of the Federal Rules of Civil Procedure, class members will automatically be considered part of the class unless they specifically choose to opt out. This change will make it easier to combat systemic sex-based wage discrimination and provide relief to all those who injured by it.
5. The Paycheck Fairness Act will strengthen oversight and enforcement mechanisms.
The PFA will revitalize the role of the Department of Labor (DOL) and the Equal Employment Oppertunity Commission (EEOC) in combating gender-based discrimination by requiring research, education, outreach, and ready public access to compensation discrimination information.
It also requires DOL and the EEOC to collect data on compensation and other employment-related data by race, nationality, and sex that is needed to enhance the ability of both agencies to detect violations and improve enforcement of the EPA.
6. The Paycheck Fairness Act will prohibit retaliation for disclosure of salary information.
The PFA will protect employees from retaliation not only for seeking redress, but also for inquiring about the employer’s wage practices or disclosing their own wages to coworkers. Without the PFA’s broad prohibition against retaliation by an employer, fear of being fired will continue to inhibit workers from discovering and seeking redress for discriminatory gender-based pay disparities.
Introduction of S. 875, the Workplace Advancement Act and S. 83, the End Pay Discrimination Through Information Act
One day after the Paycheck Fairness Act was introduced in both chambers, Senator Deb Fischer (R-NE) introduced S. 875, the Workplace Advancement Act, which has five Republican cosponsors. Following introduction, Senator Fischer released the following statement about her bill:
I am pleased to introduce legislation to reaffirm our commitment to the principle of equal pay for equal work. The Workplace Advancement Act takes an important step forward by providing necessary updates to current law regarding non-retaliation – a change supported on a bipartisan basis during the recent budget debate.
Any legislator – Republican or Democrat – who is seriously interested in making progress on this issue for women and moving past electioneering and scoring political points should step up and support the proposal. For the first time in over half a century, we have the opportunity to update the Equal Pay Act with a bill that actually provides needed changes and can realistically pass.
The press release also states that the bill’s non-retaliation language is similar to President Obama’s April 2014 executive order protecting federal workers from retaliation for disclosure of compensation information, and that the legislation “does not authorize any new federal regulations, nor does it compel employers to disclose salary information – it simply prevents punitive action against employees seeking information.”
S. 875, for the most part, is a restatement of current law. Rather than proposing substantive changes that would address the law’s significant shortcomings, its solution is to require employers to post a notice about these prohibitions in the workplace.
The one substantive change involves retaliation protection and even that provision falls short of what is needed: the new protection only extends to pay conversations that are for the purpose of determining whether the employer is compensating an employee in a manner that provides equal pay for equal work. This restriction could be interpreted to require a worker to use certain magic words when initiating discussions about pay in order to be covered by this provision. This is not likely to provide the level of confidence and comfort that is needed to undertake discussion of pay, and will mean that pay discrimination will continue to go undetected in many instances.
S. 83, an earlier Republican response to the Paycheck Fairness Act was introduced on January 7, 2015, by Senator Dean Heller (R-NV). His bill, the End Pay Discrimination through Information Act, takes the retaliation protection provisions of the Paycheck Fairness bills, and offers them as a stand-alone bill. While it is a step in the right direction, his bill fails to address other major deficiencies in the Equal Pay Act and therefore does not go far enough to give women the legal tools needed to assert their right to equal pay for equal work. S. 83 has two cosponsors, one Republican and one Independent. A comparison of the retaliation protection provisions in the three bills is available here.
With Republicans in control of the House and Senate, and almost no known Republican support for the PFA, the legislation is not likely to make any significant legislative progress this Congress. In fact, since its first introduction in the 108th Congress, the House of Representatives has passed the bill twice, both times when it was controlled by Democrats, and the Senate has never voted on its merits, despite efforts to schedule the bill for a vote. It is unclear whether the Republican alternative will receive any attention.
Despite the unlikelihood of legislative action, the PFA and other proposals to improve the economic status of women by closing the gender wage gap and expanding employment opportunities are squarely in the limelight and garnering increasing congressional attention and concern during this 2016 election cycle.
The ABA, which has a long history of working to eradicate discrimination in the workplace, adopted policy in 2010 that urges Congress to enact specified amendments to the EPA that would provide more effective remedies, procedures, and protections to those subjected to gender-based pay discrimination. The policy provides the basis for the ABA’s support for the Paycheck Fairness Act. While the ABA also supports efforts to improve the economic status of women in general, the ABA has not taken a position on other bills that form part of the current women’s economic agenda.