Labor & Employment Law Daily Paycheck Fairness Act again clears House, but what will happen in the Senate?
Tuesday, April 20, 2021

Paycheck Fairness Act again clears House, but what will happen in the Senate?

By Pamela Wolf, J.D.

Do we need this legislation, or is it “nothing more than a trial lawyer payout at the expense of hardworking women?”

On April 15, 2021, the House passed the Paycheck Fairness Act with a 217-210 vote that fell along party lines, with a lone Republican crossing the aisle to join Democrats in supporting the measure. Introduced on January 28, the day before the 12th anniversary of the signing of the Lilly Ledbetter Fair Pay Act, H.R. 7 is designed to strengthen the Equal Pay Act of 1963, help eliminate the gender wage gap, and guarantee that women can challenge pay discrimination and hold employers accountable, according to the bill’s sponsors.

When introduced, the legislation was cosponsored by every Democratic member of the House and two Republican members; the Senate legislation was cosponsored by every Democratic member of the Senate.

Will this be the year? In the last Congress, the Paycheck Fairness Act cleared the House on March 27, 2019, by a 242-187 vote that fell largely along party lines, with seven Republicans joining with Democrats who favored the bill. However, the legislation never advanced in the Senate. Notably, similar legislation has been introduced in every Congress since the 107th (2001-2002) but has fallen short of the support necessary to become law.

With an evenly divided Senate, though, and Vice President Kamala Harris available to tip the balance, many are hopeful that this will be the year that the Paycheck Fairness Act becomes law. However, the filibuster still looms large as a means to block the bill.

Paycheck Fairness Act. The Paycheck Fairness Act would address wage discrimination based on sex, defined to include sex stereotypes, pregnancy, sexual orientation, gender identity, and sex characteristics. Among other things, the legislation would:

  • Limit an employer’s defense that a pay differential is based on a factor other than sex to only bona fide job-related factors in wage discrimination claims;
  • Enhance nonretaliation prohibitions;
  • Make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages;
  • Increase civil penalties for violations of equal pay provisions;
  • Require the EEOC to issue regulations to collect from employers compensation and other employment data according to the sex, race, and national origin of employees for use in enforcing laws prohibiting pay discrimination.
  • Require the OFCCP to implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data), designate not less than half of all non-construction contractor establishments each year to file the survey, and use survey responses to identify contractor establishments for further evaluation and for other enforcement purposes.

Fulfilling a 50-year-old promise. Speaking on the House floor before the vote, Education and Labor Committee Chair Bobby Scott (R-Va.) said, “When President Kennedy signed the Equal Pay Act in 1963, our country codified the basic idea that all workers should earn ‘equal pay for equal work regardless of sex.’ Regrettably, more than five decades later—and after the passage of the Lily Ledbetter Fair Act Pay—that promise remains unfulfilled.”

Persistent wage gap. Applauding House passage of the Paycheck Fairness Act, President Biden talked about the gender-based wage gap that continues to persist in the United States. “In nearly every job—more than 90 percent of occupations—women are still earning less than men,” he said. “For every dollar the typical man who works full-time full-year earns in America, a woman earns 82 cents. For AAPI women, it’s 87 cents for every dollar a white man earns. For Black women, it’s 63 cents. For Native American women, it’s 60 cents. And for Hispanic women, it’s 55 cents. Those gaps are an affront to our values as a nation—they are unacceptable to me, and they should be unacceptable to every single American.”

Bobby Scott framed it another way: “Drawn out over a lifetime, the persistent wage gap could cost a woman anywhere from $400,000 to $2 million dollars,” he said. “This impacts both workers and their families, often meaning the difference between financial stability and perpetual hardship.”

Why do we need this law? On the GOP side of the aisle, though, lawmakers question whether the Paycheck Fairness Act is necessary. “Women should not be paid less than men for equal work; however, Republicans are not in the business of passing radical and prescriptive bills just to get flashy headlines and score cheap political points,” Virginia Foxx (R-NC) said ahead of the vote. “We are equally committed to promoting both fairness and strong policymaking, and when judged by these standards, today’s bill falls woefully short.”

Foxx stressed that pay discrimination is already illegal. “You know, we’ve really heard nothing about the inadequacies of the current law or the current processes,” she said. “What we’ve heard is that we need new legislation. Republicans disagree with that. Again, we want pay discrimination to be illegal and we want any such cases to be treated seriously and to be looked at. This bill offers no new protections against pay discrimination in the workplace, however.”

According to the Republican lawmaker, “H.R. 7 is nothing more than a trial lawyer payout at the expense of hardworking women.”

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