It’s Time to Pass the Paycheck Fairness Act

How many working women think they’re paid fairly for the work they do?  Right now, with the economy still struggling to provide jobs for all those who want them, many women are probably happy just to be employed.

But women are still paid only 77 cents for every dollar men receive, making unequal pay a continuing problem for American women and the families who depend on their wages. (According to a recent report, women are the primary breadwinners in 40 percent of American households.)

In 2010, April 20, designated as Equal Pay Day, marked how far into 2010 women had to work over and above what they made in 2009 to earn what men earned during 2009 alone.

Currently languishing in the U.S. Congress is the Paycheck Fairness Act (the PFA), proposed legislation that would level the playing field for working women.  The PFA would amend the 1963 Equal Pay Act (the EPA), which made it illegal for employers to pay unequal wages to those who perform substantially equal work.  Although enforcement of the EPA has narrowed the wage gap, a sizeable disparity still exists.

The PFA would help change the status quo.  While other civil rights statutes have been amended numerous times, the EPA never has.  The result: its enforcement tools are outdated, making the gender-disparity in pay hard to eradicate.

The PFA wouldn’t create an onerous burden on employers because it wouldn’t give employees any new rights.  Currently employers must comply with the EPA.  The only difference is that women would be better able to enforce those rights.

Many of the bill’s provisions make no demands on employers whatsoever.  One provision would merely create a grant program to help women and girls develop salary-negotiation skills.  Another would improve the way the government collects information from federal contractors.  Other provisions focus on the Equal Employment Opportunity Commission, e.g, giving EEOC staff additional training to better identify and handle wage disputes.

Of course, some provisions directly affect employers.  Most significantly, the PFA would give women the same remedies as employees discriminated against on the basis of race or national origin.  Currently women can get only limited awards like back pay.  The PFA would allow women to get compensatory and punitive damages for pay discrimination.

The PFA would also prohibit employers from retaliating against women who share salary information with their coworkers.  This kind of information-sharing helps employees learn about wage disparities and discrimination, but currently employers can retaliate against women who share such information.

Further, the PFA would allow an EPA lawsuit to proceed as a class action under the rules that apply to other federal lawsuits instead of the harsh 1963 rules that have never been amended.

Finally, a significant loophole now keeps women from winning cases brought under the EPA.  Employers who are paying women less than men for equal work can claim that the difference in pay is based on a “factor other than sex.”  This language is too broad.  It’s been used to introduce factors like a male worker’s stronger negotiation skills.

This is not what Congress intended when it passed the EPA.  The PFA would alter this language and allow different pay for men and women only when an employer can show that the difference relates to job performance and business necessity.

Congressional leaders like Nancy Pelosi have issued a ringing endorsement of the PFA.  U.S. Senator Barbara Boxer, one of the PFA’s 36 co-sponsors in the Senate, agrees.  Senator Dianne Feinstein has also joined Senator Boxer and endorsed passage of the bill in the Senate.  Significantly, President Barack Obama noted his support of this legislation in his speech before the Democratic Convention in 2012.

It’s time for Congress to act.  Let’s make pay equity a reality for America’s working women.

[A version of this commentary previously appeared as an op-ed in the San Francisco Chronicle.]

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