"Federal equal pay laws have become an empty promise for many women," UM Carey Law Professor Deborah Eisenberg told the U.S. Senate Committee on Health, Education, Labor, and Pensions during an April 1 hearing on the Paycheck Fairness Act (PFA), a bill intended to close loopholes in existing law and reduce the continuing problem of gender-based pay discrimination.
According to Senator Barbara Mikulski, D-Md., who introduced the legislation and chaired the hearing, 40 percent of all female workers are the sole breadwinners for their families. Women "are tired of getting paid in crumbs," she said.
Under current law, employers can rebut an equal pay claim by showing that the difference in compensation is based on any factor other than sex—"a gaping loophole," in Professor Eisenberg’s view. She noted that while most courts have ruled that pay differentials should be based on job or business-related factors, two federal circuits "have interpreted the 'factor other than sex' to really mean anything under the sun, even if it doesn’t relate to the qualifications of the two employees in that job or to a business-related reason."
While testifying, Eisenberg agreed with Senator Elizabeth Warren, D-Mass., who observed that using prior salaries to defend current pay inequities means that the very discrimination a woman experienced in the past "can now be a defense for discriminating against her in the present and in the future."
Allowing such factors to be used as defenses to discrimination claims, Eisenberg stated, "perpetuates the very discrimination that the Equal Pay Act was supposed to address."
The PFA combats these issues in several ways, Eisenberg said. Most important, it would require that the factors used to differentiate the compensation of employees who perform the same job be related to that job or to the business within which they work. It would also eliminate pay secrecy by prohibiting retaliation against employees who ask for or discuss wage information, and, Eisenberg testified, by facilitating "the collection and study of pay data” to “better understand the causes of pay discrimination."
The Act would also allow compensatory and punitive damages where appropriate and would permit class action litigation to address systemic gender-based pay discrimination, putting victims on equal footing legally with victims of race-based pay discrimination.
Opponents of the legislation insist that its passage would create a flood of frivolous law suits—a claim Eisenberg rejects, arguing that such litigation would be expensive, "extremely difficult to win," and potentially damaging to the plaintiffs’ health and careers. Moreover, attorneys working on a contingency basis are unlikely to file obviously frivolous Equal Pay Act claims.
"Most women do not want to sue their employers," Eisenberg asserts. "They want the law to express a stronger commitment to equal pay for equal work so employers will have an incentive to pay them fairly without the need for litigation."
Despite strong Democratic support, the PFA failed to garner a single Republican vote and did not reach the 60 votes necessary to advance.
Senate Majority Leader Harry Reid, D-Nev., preserved his right to reintroduce the bill and is likely to do so in the near future, but that is cold comfort for Senator Mikulski. "When I hear all of these phony reasons—some are mean and some are meaningless—I do get emotional. I get angry, I get outraged, I get volcanic," she said.
Mikulski vows to do everything within her power to pass the bill when it is reintroduced.