Wednesday, November 17, 2010

Senate filibuster kills the Paycheck Fairness Act (S.3772)

The Paycheck Fairness Act (S.3772) was designed to update and strengthen the Equal Pay Act of 1963, which made it illegal for employers to pay unequal wages to men and women who perform substantially the same work. An identical measure was passed in the House of Representatives as HR12 back in March of 2009.

The Act would have revised the remedies for, enforcement of, and exceptions to prohibitions against sex discrimination in the payment of wages. Wage Rate Differentials (differing pay rates for persons performing essentially the same job) are generally prohibited but with some exceptions. The Paycheck Fairness Act would have limited the exceptions to the prohibition against wage rate differentials to bona fide factors, such as education, training, or experience. It would have made employers who violated sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages. And lastly, it also would have partially closed the loophole in discrimination cases caused by the Courts allowance of alternate definitions of the term "similarly situated" when determining whether disparate treatment and actions rise to the legal standard of Discrimination. And it would have pushed back against the trend in discrimination cases to so limit considerations and to require such specific evidence as to place an unreachable burden on plaintiffs. The Act stated:

(b) The Director of the Office of Federal Contract Compliance Programs shall ensure that employees of the Office--
(1)(A) shall use the full range of investigatory tools at the Office’s disposal, including pay grade methodology;
(B) in considering evidence of possible compensation discrimination--
(i) shall not limit its consideration to a small number of types of evidence; and
(ii) shall not limit its evaluation of the evidence to a small number of methods of evaluating the evidence; and
(C) shall not require a multiple regression analysis or anecdotal evidence for a compensation discrimination case;
(2) for purposes of its investigative, compliance, and enforcement activities, shall define ‘similarly situated employees’ in a way that is consistent with and not more stringent than the definition provided in item 1 of subsection A of section 10-III of the Equal Employment Opportunity Commission Compliance Manual (2000)

In addition to strengthening the language and penalties of the original Equal Pay Act, this bill would have also made grant funding available to provide negotiation skills training programs for girls and women. It also called for the convening of a national summit to discuss, and consider approaches for rectifying pay disparities.

Opponents of the act argue that the status quo is just fine. They falsely claim that the current system for determining pay discrimination (known as the Interpretative Standards for Systemic Compensation Discrimination) has been hugely successful and therefore need not be altered. They further claim that any alteration of the system would likely result in additional claims being ruled in favor of plaintiffs (alleging discrimination) and that THAT would be "bad for business"...

But the truth is, it is NEVER good business to discriminate.

We here at the Wichita NAACP Blog have been sounding the alarm for years now that the Civil Rights that we take for granted are under real threat. Laws are dynamic; once passed, they must be protected. No victory is permanent and every gain, if taken for granted, can be lost. This bill was an offensive salvo; a bill intended to push us back in the direction of level playing fields and fundamental fairness... this bill was killed today - but the fight must go on.

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