On Equal Pay Day, Congress Still Divided Over How to Address Wage Discrimination

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By Chris Opfer

April 14 — Democrats April 14 commemorated “National Equal Pay Day,” as Congress remained largely divided over how to address the persistent gap between wages for men and women.

“Women make up half the population, women in two-thirds of homes are the primary or secondary bread winners,” Rep. Rosa DeLauro (D-Conn.) told reporters. “When they’re short-changed, their families are short-changed.”

DeLauro joined House Minority Leader Nancy Pelosi (D-Calif.) and other Democrats at what's become an annual event marking the date on which supporters say women on average would have to continue working to make the same amount that male workers made the previous year.

Although a number of lawmakers on both sides of the aisle generally support efforts to stop pay discrimination, Democrats and Republicans have different ideas about how to resolve the issue.

DeLauro and Sen. Barbara Mikulski (D-Md.) are the lead sponsors of the Paycheck Fairness Act (S. 862, H.R. 1619), a bill that's been introduced in every session of Congress since 1997. 

The legislation would protect workers from retaliation for sharing information about their wages, require employers to explain any pay disparities among workers performing the same job, and allow employees to seek unlimited punitive damages in wage bias cases.

Republicans Backing Scaled-Down Bill

Republicans are backing the competing Workplace Fairness Act (S. 875), a scaled-down measure sponsored by Sen. Deb Fischer (R-Neb.) that would also ban retaliation for pay inquiries and discussions without shifting the burden of proof in wage discrimination cases (for employers to assert nondiscriminatory reasons for their actions) or authorizing unlimited punitive damages.

“Any legislator—Republican or Democrat—who is seriously interested in making progress on this issue for women and moving past electioneering and scoring political points should step up and support the proposal,” Fischer said in a statement shortly after introducing the bill April 8. “For the first time in over half a century, we have the opportunity to update the Equal Pay Act with a bill that actually provides needed changes and can realistically pass.”

The White House and congressional Democrats maintain that female workers earn 78 cents for every dollar earned by their male counterparts, citing data compiled by the National Partnership for Women & Families. 

That figure has been disputed, however, by critics who say the gap is likely more narrow and argue that the median earnings comparison doesn't take into account that women work fewer hours on average than men.

Republican Bill More Likely to Move

Fischer's measure is more likely to move in the Republican-controlled Senate, but it remains to be seen whether the legislation will attract the support from Democrats necessary to avoid a filibuster.

DeLauro and other Paycheck Fairness Act supporters have said that bill's additional provisions are necessary to give teeth to pay discrimination protections and to force employers who pay women less to explain their rationale for doing so. Democrats are likely to offer amendments including the burden-shifting and punitive damages provisions, should Fischer's bill be brought to the floor for a vote.

“It's no substitute for the full bill,” Pelosi said, when asked whether she would support Fischer's legislation if it reached the chamber floor.

“I think that what we need to do is to make sure we’re going for the strongest protection for women in the workforce and women on behalf of their families,” DeLauro said, when asked whether Fischer's measure is better than nothing. “They deserve no less.”

Meanwhile, Fischer told Bloomberg BNA April 14 that her legislation is a common-sense alternative to the Paycheck Fairness Act that would allow employers to continue using merit-based pay systems without running afoul of federal law. “I don’t know how every member can’t support it,” she said. “I mean, truly, it just reinforces current law and it puts in place that non-retaliation clause that is very similar to the president’s executive order.”

President Barack Obama in April 2014 singed an executive order (EO 13,665) prohibiting federal contractors from retaliating against employees who discuss their pay with one another.

Fischer said the bill also avoids the “unheard of” step of allowing unlimited punitive damages in pay discrimination cases. Federal discrimination laws such as Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act allow for punitive damages in cases involving reckless or intentional conduct, but limit such damages awards to up to $300,000 depending on the size of the employer.

Fischer said she isn't sure when her legislation may see a markup in the Health, Education, Labor and Pensions Committee or be brought to the floor for a vote.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com