On June 5, 2012, Senate Democrats fell 8 votes shy of the 60 votes needed to proceed to a vote on the Paycheck Fairness Act (S. 3220). The Act, as written would, among other things, amend the Equal Pay Act to allow employees to recover punitive damages for gender discrimination and would require employers to show that wage disparities for employees performing the same job was not due to gender.
It is ironic how this issue lays dormant until we enter an election year. In fact, the last time we saw a vote on the Paycheck Fairness Act was in 2010. As expected, President Obama’s reelection campaign and Senate Democrats will be using the bill’s recent failure as a means of asserting that Republicans have waged war on women’s welfare and that the advancement of women is not a priority for the Republican party.
In an attempt to combat that assertion, Republican Senator Dean Heller has introduced his own bill dubbed the End Discrimination Through Information Act (S.3256). Heller’s bill, like the Paycheck Fairness Act, would ensure that employers could not retaliate against employees who openly discuss their pay. The importance of this provision is that employees cannot determine if they are subject to wage discrimination, if they are prevented from discussing wages with other employees. Heller’s bill, however, does not include the punitive damages provision or other employer penalty provisions found in the Paycheck Fairness Act.
The lack of these provisions has caused various women’s groups to criticize Heller’s bill as not doing enough to stop pay discrimination. For this reason, Senator Reid (D-NV), the Senate Majority Leader, is unlikely to bring Heller’s bill to the floor for a vote this year. However, we could see one more attempt to pass the Paycheck Fairness after the November elections since Senator Reid employed a procedural maneuver which allows him to bring the bill up for a second vote.