Why the Paycheck Fairness Act is Crucial

By Tina Vasquez (Los Angeles)

The Lilly Ledbetter Fair Pay Act was signed into law by President Obama on Jan. 29 and according to the organization AAUW, a charitable membership organization dedicated to advancing equity for women and girls through advocacy, education, philanthropy and research, it restores the long-standing interpretation of civil rights laws and Equal Employment Opportunity Commission policies that allow employees to challenge any discriminatory paycheck they receive. This of course, is a step in the right direction, but recent numbers from the Bureau of Labor Statistics show that the pay gap between men and women has actually widened for full-time, year-round workers. It seems completely ludicrous that women are still making less money than men for performing the same amount of work, but what’s even worse is that Congress has failed to pass any legislation that would give women equal pay protections.

This is where the Paycheck Fairness Act comes into play. The bill, which was the topic of the Senate Committee on Health, Education, Labor, and Pensions’ hearing yesterday, March 11, provides a much-needed update of the Equal Pay Act, which is completely outdated and nearly 47-years-old. According to AAUW, this comprehensive legislation would create stronger incentives for employers to follow the law, empower women to negotiate for equal pay, and strengthen federal outreach, education, and enforcement efforts. The bill would also deter wage discrimination by strengthening penalties for equal pay violations and by prohibiting retaliation against workers who ask about employers’ wage practices or disclose their own wages. Many believe that after the enactment of Ledbetter Act last year, the Paycheck Fairness Act is the next logical step forward in the fight for pay equity, but whether or not it will pass remains unknown. According to AAUW’s Director of Public Policy and Government Relations, Lisa Maatz; however, the Act has a better chance now than ever before.

“The fact that they’re having a hearing for it is a very good sign,” Maatz said. “Also, it passed the house with a larger bipartisan majority than the Ledbetter act and with 36 co-sponsors, more than it’s ever had before and it’s an impressive number for a civil rights bill. There are a number of senators who are leading the charge on this and are determined to get it to the President’s desk, so things are looking promising.”

In order to better understand the scale and scope of this incredibly important, groundbreaking bill, The Glass Hammer spoke to Maatz as well as labor and employment law attorney, Counsel Dena Calo of Genova, Burns & Vernoia, based in Newark, New Jersey. Here’s what they had to say:

The Glass Hammer: How would the passing of the Paycheck Fairness Act change the workplace for women?
Dena Calo: The Paycheck Fairness Act would breathe life into the Equal Pay Act (EPA). The EPA has been in existence since 1963, but is rarely used by women to dispute their unequal pay in the workplace. In my opinion, the reason for this is that there are so many defenses for employers that the likelihood of success of a case brought under the EPA is rare. Under the Paycheck Fairness Act (PFA), unequal pay claims are strengthened in so many ways including: allowing women the right to recover compensatory and punitive damages, facilitating class actions against employers who pay unequally on a class-wide basis, and prohibiting employers from retaliating against employees who share wage information thus allowing them to learn whether or not pay disparities exist. The Act would also require employers using the ‘factor other than sex’ defense to use a ‘bona fide factor other than sex’ defense, including factors such as as training, education, or experience to establish that the pay disparity is not based on gender. The employer would also have to demonstrate that this bona fide factor is not sex-based, but job-related to the position in question and consistent with business necessity. This tightening up of the employer defense will make it much more difficult for an employer to defend pay disparities against women that were being easily explained away in the past.
Lisa Maatz: If the Ledbetter Bill kept the court doors open, this act – if implemented properly – will make it so there’s no need to go to court in the first place. It’s about incentives and deterrents to pay fairly and avoid civil rights violations.

T.G.H.: Why do you think being paid fairly is still an issue for women today in 2010?
D.C.: I think there are three issues. Women are still suffering the effects of a long history of pay discrimination and have not been raised to meet the salaries of men doing the same work. Two, women generally still aren’t at the top of many organizations and therefore aren’t making the hiring and compensation decisions. Women are still dealing with misconceptions in the workplace regarding their need to split time between work and family when in reality, their dedication to their jobs should never be questioned. So, women are not earning the same as men because their ‘time worked’ or ‘focus on the job’ is questioned when they are working mothers. Lastly, Women are not permitted to discuss pay issues and therefore, have no knowledge regarding the pay of their male counterparts. The PFA would permit such discussions, require pay reporting to the EEOC, and would protect women who had such discussions from retaliation by their employers.
L.M.: Discrimination is part of the problem, but it isn’t the only one. There’s such a pay gap because of job segregation and ‘male jobs’ are valued more and paid more. Many people place the blame on women because they ‘chose’ their jobs, but women often don’t have a choice; they’re guided along all of their life by parents, guidance counselors, and society to certain professions. The current laws that apply to pay discrimination actually make it cheaper for employers to discriminate against women than follow the law. The penalties are so minimal that it becomes part of the cost of business. I don’t want to place too much of an emphasis on women developing better negotiation skills because they should be offered equal pay despite their gender in the first place. Just to illustrate how unfair it is: Men get paid more for being parents, while statistics show that women actually get paid less for being parents. Not only are current laws outdated, but they’re not representative of the workforce. We are half the workforce; we are a critical mass; we are the engine of the economy, yet we still aren’t getting paid fairly.

T.G.H.: Currently, is there anything women can do if they’re not being paid equally?
D.C.: Women have the Equal Pay Act to sue under, but unfortunately the remedies under the EPA are not significant and are easy to defend against for employers based on the number of affirmative defenses. It’s also very difficult for women to obtain information on the salary of male counterparts to determine if there is a wage disparity to begin with and therefore, women are very reluctant to bring claims in the first place.
L.M.: Women can try approaching their supervisors to find out if there is a pay gap, but oftentimes women have jobs where those kinds of things can’t be asked or discussed. The best piece of advice I can offer women is know your rights. If you have to, file a claim, but if this new bill passes women won’t have to file these claims anymore because let’s face it, it’s not an easy thing to do. Also, women should utilize the internet and find out how much those in their profession and in their area are making. Don’t be afraid to ask questions. AAUW want women to feel empowered enough to take these issues on and make claims, but we also want to make sure that the laws are working for them and that’s why the Paycheck Fairness Act is so critical. It’s like a deal we’re making with women: We’ll get the government and civil rights up to snuff, but you need to be aware of the laws and of your rights. We’re fighting to make sure that there’s more than just a penance to pay.

As mentioned previously, the hearing for the Paycheck Fairness Act took place yesterday and AAUW is urging women to contact their senators and request that they support the Act. Also – because women earn less than men and must work longer to receive the same amount of pay – AAUW is recognizing this inequity with Equal Pay Day on Tuesday, April 20, 2010 and providing women with a pay equity resource kit. Simply put: It’s long overdue that women, who represent half of the workforce, get paid equally and fairly and it’s time to make it happen and take advantage of the resources we do have.