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S. 862 (114th): Paycheck Fairness Act

Much has been made in recent years of the gender-based wage gap, with the oft-cited number from the Bureau of Labor Statistics that full-time female workers make 78 cents for every dollar a man makes. (Although some studies have indicated that the gap is negligible or virtually nonexistent after controlling for certain variables.) The main bill in this Congress to close the gap is the Paycheck Fairness Act, S. 862 and H.R. 1619, introduced by Sen. Barbara Mikulski (D-MD) in the Senate and Rep. Rosa DeLauro (D-CT3) in the House.

This bill contains several proposed changes to federal law. It would amend the Equal Pay Act of 1963, currently the primary law governing this issue, to limit when employers can pay differently to “bona fide factors, such as education, training, or experience.” It would require the Equal Employment Opportunity Commission (EEOC) to collect data on compensation, hiring, termination, and promotion sorted by sex.

It would also prevent employers from retaliating against employees for inquiring about or disclosing wage information at a company — perhaps the main method employees have of discovering such a gap in the first place. And it would “make employers who violate sex discrimination prohibitions liable in a civil action for damages.”

####What supporters say

Virtually every congressional Democrat has signed on has a co-sponsor.

Mikulski said, ““Equal pay is not just for our pocketbooks, it’s about family checkbooks and getting it right in the law books. The Paycheck Fairness Act ensures that women will no longer be fighting on their own for equal pay for equal work.” President Obama has also endorsed the legislation, saying “When women succeed here in America then the whole country succeeds… I’ve got two daughters, I expect them to be treated the same as somebody’s sons who are on the job.”

####What opponents say

However, not everybody agrees. Rep. Cathy McMorris Rodgers (R-WA5), the highest-ranking woman in Republican leadership, said “Many ladies I know feel like they are being used as pawns and find it condescending that Democrats are trying to use this issue as a political distraction from the failures of their economic policies.” In fact, notably, not even a single Republican woman has signed on or signaled her support.

The bill faces a steep uphill climb in the Republican-controlled Congress. Speaker Paul Ryan (R-WI1) has voted against the House version multiple times. Senate Majority Leader Mitch McConnell (R-KY) has accused the legislation of being a “‘messaging bill… These are bills designed intentionally to fail so that Democrats can make campaign ads about them failing.” He also mocked the bills as being introduced by Democrats to “blow a few kisses to their powerful pals on the left” and that its main goal was so “The Democrats are doing everything they can to change the subject from the nightmare of Obamacare.” Republicans also warn that the bills would increase lawsuits, which in turn would raise the cost of doing business in America.

####One Republican supporter

Only one Republican in either chamber has cosponsored the bill: Rep. Chris Smith (R-NJ4). Smith was one of only three Republicans to vote for the Lilly Ledbetter Fair Pay Act, the first piece of legislation President Obama signed during his presidency in 2009, which extended the length of time women had to file wage discrimination lawsuits. The other two Republicans who voted in favor are both still serving — Rep. Ed Whitfield (R-KY1) and Rep. Leonard Lance (R-NJ7) — but neither have signed on as a co-sponsor to this bill.

####What to expect

Both the House and Senate version have not received consideration since being introduced in March 2015 to their respective committees: Education and the Workforce Committee in the House; Health, Education, Labor and Pensions Committee in the Senate.

The bill (or a close variation of it) has been introduced in every Congress since 1997, with current Democratic presidential candidate and former Sen. Hillary Clinton (D-NY) the lead sponsor of its 2005–06 and 2007–08 incarnations. The closest it came to enactment was passage by the then-Democratic House in 2009, but although the Senate voted in favor with 58 votes, that wasn’t enough to overcome the 60-vote barrier needed to dispel a filibuster.

Last updated Feb 14, 2016. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Mar 25, 2015.

Paycheck Fairness Act

Amends the portion of the Fair Labor Standards Act of 1938 known as the Equal Pay Act to revise remedies for, enforcement of, and exceptions to prohibitions against sex discrimination in the payment of wages.

Revises the exception to the prohibition for a wage rate differential based on any other factor other than sex. Limits such factors to bona fide factors, such as education, training, or experience.

States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based upon or derived from a sex-based differential in compensation, (2) is job-related with respect to the position in question, (3) is consistent with business necessity, and (4) accounts for the deferential in compensation at issue. Makes such defense inapplicable where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential, and (2) the employer has refused to adopt such alternative practice.

Revises the prohibition against employer retaliation for employee complaints. Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee in response to a complaint or charge, or in furtherance of a sex discrimination investigation, proceeding, hearing, or action, or an investigation conducted by the employer.

Makes it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee's wages.

Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages.

States that any action brought to enforce the prohibition against sex discrimination may be maintained as a class action in which individuals may be joined as party plaintiffs without their written consent.

Authorizes the Secretary of Labor (Secretary) to seek additional compensatory or punitive damages in a sex discrimination action.

Requires the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs to train EEOC employees and affected individuals and entities on matters involving wage discrimination. Authorizes the Secretary to make grants to eligible entities for negotiation skills training programs for girls and women. Directs the Secretary and the Secretary of Education to issue regulations or policy guidance to integrate such training into certain programs under their Departments. Directs the Secretary to conduct studies and provide information to employers, labor organizations, and the general public regarding the means available to eliminate pay disparities between men and women. Establishes the Secretary of Labor's National Award for Pay Equity in the Workplace for an employer who has made a substantial effort to eliminate pay disparities between men and women. Amends the Civil Rights Act of 1964 to require the EEOC to issue regulations for collecting from employers compensation data and other employment-related data as anaylzed by the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination. Directs: (1) the Commissioner of Labor Statistics to continue to collect data on woman workers in the Current Employment Statistics survey, (2) the Office of Federal Contract Compliance Programs to use specified types of methods in investigating compensation discrimination and in enforcing pay equity, and (3) the Secretary to make accurate information on compensation discrimination readily available to the public. Directs the Secretary and the Commissioner [sic] of the EEOC jointly to develop technical assistance material to assist small businesses to comply with the requirements of this Act.