Almost 60 years ago, Congress declared that equal pay for equal work was the law of the land when it passed the Equal Pay Act of 1963. This Act prohibits employers from paying unequal wages to male and female workers who perform jobs under similar work conditions that require substantially equal skill, effort, and responsibility, unless there is a legitimate reason for a pay differential.
This historic statute has not lived up to its promise. It is outdated and ineffective, and wage discrimination remains a persistent and wide-spread problem. Women today still receive unequal pay for equal work, even in jobs such as secretary, primary school teacher, or nurse that are predominantly held by women. And the pandemic has worsened the attendant problems because of its disproportionate impact on women.
Earlier this month, on April 15, the House of Representatives took definitive action to eliminate wage discrimination by passing H.R. 7, the Paycheck Fairness Act (DeLauro, D-CT), by a vote of 217- 210. The sole purpose of this important legislation is to update and strengthen the Equal Pay Act so that men and women have the tools necessary to assert their legal right to equal pay for equal work.
If passed by the Senate, the legislation would accomplish this by strengthening remedies available under the Act; enhancing oversight and enforcement mechanisms at the Department of Labor and the Equal Employment Opportunity Commission; prohibiting employers from asking about wage history; prohibiting retaliation against an employee for disclosure of salary information; and clarifying that wage disparities must be based on legitimate work-related factors.
In cases brought under the Equal Pay Act, an employer will not be guilty of wage discrimination if a pay differential is based on (i) seniority, (ii) merit, (iii) a system that measures quantity or quality of production, or (iv) a “factor other than sex.” The Paycheck Fairness Act retains the first three defenses and clarifies the fourth. The Act also clarifies that any pay differential must be based on “a bona fide factor other than sex such as education, training, or experience.” A bona fide factor must be job-related, consistent with business necessity, and account for the entire differential in the compensation at issue.
The ABA, which has a long history of opposing discrimination in the workplace, adopted policy in 2010 specifically supporting the Paycheck Fairness Act. In 2019, the ABA adopted additional policy urging federal, state, and local governments to enact paycheck fairness legislation that broadens protection on the basis of sex to include gender, gender identity, and gender expression. Prior to passage by the House, H.R. 7 was amended to include this broader definition.
During floor debate, House members opposed to the legislation asserted that it would undermine economic recovery and benefit trial lawyers by encouraging litigation. In an April 13 letter to every member of the House of Representatives, ABA President Patricia Lee Refo countered that workers want to be paid fairly, not sue their employers, and that the bill’s strengthened remedies, which are similar to those available under other employment discrimination statutes, will reduce lawsuits by incentivizing employers to review their wage-setting practices and rectify those that are based on invalid justifications.
President Refo also pointed out that the bill’s clarification of the “factor other than sex” defense will reduce rather than encourage litigation by providing definitive guidance to judges and lawyers who may be considering pursuing a case because the definition, which is adapted from Title VII discrimination cases and codified in the Civil Rights Act of 1991, is one with which courts already are familiar.
Upon House passage, President Biden stated, “Equal pay is about justice, fairness, and who we are as a nation — it makes all of us stronger, and it represents what America is truly about.“
It is now up to the Senate to give men and women the tools they need to end gender-based wage discrimination and assure that this nation lives up to its expressed commitment to equal pay for equal work.