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June 01, 2012

ABA reiterates support for Paycheck Fairness Act

The ABA reiterated its support last month for the Paycheck Fairness Act, legislation that would update key provisions of the Equal Pay Act of 1963 to assure that men and women have the tools to assert their legal right to equal pay for equal work.

Despite strong support from the Obama administration, Democratic senators and numerous civil rights groups, proponents failed by a 52-47 vote June 5 to garner the 60 votes needed in the Senate to invoke cloture and proceed to a vote on this year’s bill, S. 3220. 

In a May 31 letter to all senators. ABA President Wm. T. (Bill) Robinson III emphasized that the legislation would update current law without altering the basic scheme of the Equal Pay Act or imposing excessive, novel burdens on employers. “Indeed,” he said, “the majority of the proposed changes are borrowed from other civil rights statutes that have proved more effective in eradicating workplace discrimination.”

He explained that the bill would apply equally to men and women who experience sex-based wage discrimination and would provide that an employer is not guilty of wage discrimination if a pay differential is based on seniority, merit, quantity or quality of production, or “any other factor other than sex.”

The bill, he said, would close an existing loophole by clarifying that the “factor other than sex” defense would be valid only when it is based on a bona fide factor (such as education and training) that is job-related, consistent with business necessity and where there is no other alternative practice that would serve the same business purpose without producing the wage differential.

Robinson also emphasized that the bill would not encourage excessive verdicts against employers that will bankrupt businesses and jeopardize the recovery of the economy. He noted that by “helping improve the present and future economic welfare of working women who make up about one half of the work force and who are the primary breadwinners in more than 12 million families, the measure would foster financial security and a strong economy.”

During the last Congress, the Paycheck Fairness Act easily passed the House but failed by just two votes on a procedural vote in the Senate.

Following the June 5 vote, bill sponsor Sen. Barbara Mikulski (D-Md.) said, “Although we lost the vote today, we’re not going to give up the battle. While it is a sad day here in the U.S. Senate, it is an even sadder day each day a woman earns less than a man doing the same job with the same education.” She said it is her hope that “we can bring this bill up again and forge a bipartisan vote.” 

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