Unfair Loss

The Paycheck Fairness Act, which would have made it easier for women to combat pay discrimination in the workplace, died in the Senate on Wednesday despite getting the support of 58 senators. The support broke down along party lines and is likely dead for the near future.

TAP spoke with Deborah Vagins, legislative counsel for the American Civil Liberties Union, one of the organizations that advocated for the bill's passage, about some of the misinformation spread about the bill, what it would do to help women, and what's next for equal pay for equal work.

The bill was designed to correct some of the problems with enforcement of the Equal Pay Act. Can you describe what those problems were, and how the bill would fix them?

The Paycheck Fairness Act would provide an update to the Equal Pay Act of 1963, which was a landmark employment-discrimination law, but it has not been able to achieve the problem of closing the wage gap, primarily because of limited enforcement rules. We wanted to implement some reforms that would modernize it and update it. Some of the major changes would be, for example, it requires employers to demonstrate, when there are wage differences, it must have a business justification that stems from factors other than sex. You can still pay people differently ... but when the employer wants to use the defense that is the factor other than sex defense, it has to provide justification.

The second would have been to prohibit retaliation of workers who ask about their own wages or disclose their own wages. What's important is that employers generally don't have open pay policies. People don't know what other workers are making, and they don't know how to compare. It would not require them to disclose. There's another very important part of the bill is that it would level the playing field to determine that women can [use] the same remedies as those who are discriminated against on the basis of race.

They don't have the same remedies now?

Under the EPA, there are limited damages available, and under Title 7, which is another avenue for women to bring wage-discrimination lawsuits, there's an arbitrary cap that was a political compromise of $300,000. However, if you want to bring a race or national-origin claim, you have a third statute at your disposal where there are no arbitrary caps. Part of what Paycheck Fairness would do would be to allow women to recover damages up to the extent of their injuries. We think this part is important in situations where a woman of color brings a lawsuit. There's something fundamentally unfair about the fact that the case might be steered into a gender case because the employer might realize damages are less.

Senate Republicans said yesterday the bill would remove caps on compensatory and punitive damages and would require businesses to report salaries to the government. Where was that coming from, and is it true?

Actually, neither of those things is quite right. It wouldn't remove any caps. There are several statutes that someone can use to bring a wage-discrimination case, depending on what protected class they are. You can bring a race case or gender case on Title 7, on that statute, there are caps. In another law called Section 1981, there was never a reduction of damages codified into law. So if someone brought a case under that law, whatever a judge and jury decided was appropriate would be what they received. For women, there's no parallel legal scheme like that. This would just provide another option for women who would bring a case, for them to be able to recover up to the extent of their injuries. But these are damages under 1981 [and] are subject to judicial review and to constitutional limits. So some of the fear of the runaway juries is just not borne out to be true.

On reporting data, unfortunately, I think there was a lot of misinformation about this bill, and we spent a lot of time trying to combat it. The Paycheck Fairness Act, would reinstate the equal opportunity survey which requires federal contractors of a certain size to submit wage information to the Office of Federal Contractor Compliance in the Department of Labor. So it's a reinstatement. This survey was taken away under the Bush administration in 2006, although it had been used by Democratic and Republican administrations alike before that. Reinstatement would not impose additional burdens, because contractors already had to collect and maintain that data in case they were selected for an audit. There was this idea that it was a huge burden on businesses. [But] this is a well-understood survey that had just been dismantled a few years ago; the data is already collected by employers.

Are there any elements of the PFA that can be accomplished without legislation, like with executive action?

There are elements of the bill that could be implemented through administrative action, and we will certainly be looking at those and pursuing it. The issues we discussed about wage data, the Department of Labor could reinstate the equal opportunity survey, the [Equal Employment Opportunity Commission] could also, and I believe that it is, survey what sort of data it might need in order to fully enforce wage discrimination, and it could engage in rule-making. There are training programs in the bill as well, that could be implemented, for women and staff. Of course, that would require funding. There are small parts of it, significant but small parts, that could be implemented.

Does it have another shot in the lame duck or in the next session?

I have not heard any word about it coming back up in the lame-duck session. I think there's been an outpouring of concern that it failed in this way, and what I mean by that is that it passed the House of Representatives with a wide majority and on a bipartisan basis, the administration has strongly supported it, there have been numerous reports supporting the Paycheck Fairness Act for women and the economic survival of families, and a majority of the U.S. Senate supported it as well, 58 senators, and on top of all that, we helped commission polling data that showed that 84 percent of Americans across party lines would support such a bill. So for it to fail with all that wide support is especially tragic. Trying to explain how something so important could die with a 58 vote is difficult and frustrating for both advocates and the public.

I would love to see it come back up; I don't think it's going to. There's limited time left in the lame duck, but I would say it rises to the importance of many of the bills on the agenda. For next year, we had a meeting with the president and many of his senior staff right after the loss, and he reiterated to the group of advocates ... that his administration would continue pushing. And he did hope, as we do, that there would be bipartisan support in the next Congress. There is bipartisan support in the country, but there does not appear to be bipartisan support in the Senate. I think it will be an uphill battle in the next Congress, but I don't think it's doomed.

Do you think that the conservative argument -- that the pay gap is a result of women making choices -- holds sway with the public at all?

All of the research shows that there is some percentage of unexplainable wage gap. We've seen lots of surveys or assertions from the other side, but if you drill down on that data, what we've seen is on the other side is, if you cut data so narrowly, you can try to prove your case. We've seen studies where it says women in some brackets make more than men, but if you look at the survey, it's urban women at a very young age with a small sample. You can cut data and have it in certain areas, but overall, we know from the census data that women make 23 percent less, but there's always a portion that's unexplained when you hold constant for education and training and factors that would influence pay. So, I don't know that that argument holds sway. I think people generally understand and believe the wage gap. But I think people are surprised when they hear it hasn't been solved. That's the reaction I get. When people ask me what I'm working on and I say equal pay for equal work, it's often a surprise. They thought there had been solutions already in place, and that's what surprises people.

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