The Gender Pay Gap and the Paycheck Fairness Act

By Staffer Angela Bouliakis

Currently, federal law prohibiting job discrimination includes: Title VII of the Civil Rights Act of 1964,which prohibits employment discrimination based on race, color, religion, sex, or national origin and the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. The twice-failed Paycheck Fairness Act (PFA) would have amended the EPA by expanding the remedies available for sex-based discrimination.

Some of the arguments for the PFA are that it establishes federal grants to assist women with negotiation skills, make it easier for plaintiffs to bring class action suits for pay discrimination because all members of the class would be part of the suit and would have to choose to opt out instead of choosing to be in the lawsuit, allows recovery of compensatory and punitive damages and back pay, and the PFA would restrict the Equal Pay Act’s employer defense that a pay differential was based on any factor other than sex.

Some of the arguments against the PFA were that it would strip employers of the ability to provide different pay for different locations and shifts; would impede on the ability to make individually based salary decisions and offer performance bonuses; that it would lead to businesses purchasing larger legal liability insurance, which would limit business expansion due to increased costs; and that it would provide a means for more lawsuits in today’s docket-filled courts.

Outside of some of the arguments for and against the PFA, some saw the PFA as a political step to gain female votes for the Democratic Party by painting congressional Republicans as insensitive to women’s issues. Despite this discussion, there still remains the issue of the gender pay gap and what can be done to address it. Even then, the arguments continue on whether the discrepancy between pay that men and women receive for the same work is due to lifestyle choices such as number of hours worked and the need for maternity leave or specifically because of discrimination. While moves toward equality in pay have been made through legislation such as the Lily Ledbetter Act, which expanded the statute of limitations on lawsuits over equal pay, Ledbetter did not actually change the gap. If we want to work towards the ultimate goal of changing the gap, we might benefit from steps such as the passage of legislation regarding family leave, increased availability of childcare, placing women in higher-paying positions from the start, and promoting a culture that encourages conversation on salaries.

Click here for information on the Paycheck Fairness Act and its failure to advance through the Senate.