As expected, supporters of the Paycheck Fairness Act (S. 3220) failed to muster the votes needed to advance the bill to a final Senate vote. Despite the Administration’s Statement of Policy (pdf) “strongly support[ing]” the measure’s passage, the Senate voted 52-47 in favor of moving it forward, 8 votes shy of the 60 needed. A procedural maneuver to bring companion legislation (H.R. 1519) to the House floor recently failed as well, effectively killing any chance of passage the Paycheck Fairness Act would have this year.
Among other changes, the Paycheck Fairness Act would have:
- Expanded damages under the Equal Pay Act (EPA) to include potentially unlimited backpay and punitive awards.
- Weakened an employer’s ability to raise the “factor other than sex” affirmative defense in a wage discrimination case. Under the more stringent standard, an employer would have to prove that a pay differential was based on a “bona fide factor other than sex, such as education, training, or experience,” and that this other factor is job-related and consistent with business necessity. An employee would be able to rebut this claim by a showing that an alternate business practice exists that would not result in the disparity.
- Eased the requirements for bringing a class action lawsuit under the EPA.
- Prohibited retaliation against employees who made a complaint, filed a charge, testified or otherwise assisted in an investigation or proceeding related to an unfair wage complaint.
- Made it unlawful for an employer to prevent employees from discussing or comparing salaries.
- Eliminated the requirement that employees work in the same establishment for wage comparison purposes. An employer’s establishment would include workplaces located in the same county or similar political subdivision of a state.
- Allowed the Equal Employment Opportunity Commission (EEOC) to collect pay data from employers.
- Reinstated the Equal Opportunity Survey, to be administered by the Office of Federal Contract Compliance Programs (OFCCP), and provided the agency with additional investigative methodologies to use in performing compensation analysis. The previously-abolished EO survey allowed the OFCCP to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation.
In a letter (pdf) to Senate leaders, various business associations and advocates had urged the chamber to oppose the bill. According to their position, the Paycheck Fairness Act:
would impose unprecedented government control over how employees are paid at even the nation’s smallest employers. This flawed legislation could outlaw many legitimate practices that employers currently use to set employee pay rates, even where there is no evidence of intentional discrimination. Common practices that a court could find unlawful under S. 3220 include providing premium pay for professional experience, education, shift differentials or hazardous work, as well as pay differentials based on local labor market rates or an organization’s profitability. This level of government intervention in employee compensation is both unprecedented and unwarranted in the United States.
The Paycheck Fairness Act has been introduced a number of times in both chambers over the past 15 years. The previous Senate vote on the measure in 2010 also failed along party lines.
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