Equal Pay Debate Continues in the Midst of Legislative Stall

by Samantha Serna

The Equal Pay Debate gained momentum on April 8, 2014 as President Obama marked the 51st Anniversary of the 1963 Equal Pay Act by signing into law an executive order aimed at addressing unequal pay. The Executive Order, “Non-Retaliation for Disclosure of Compensation Information,” applies certain provisions of the Paycheck Fairness Act to federal contractors. The Order bans all federal contractors from retaliating against employees who wish to discuss pay differences. The legislation, though neutral in gender language, is designed to aid women attempting to negotiate closing salary gaps.

The Democratic-introduced Paycheck Fairness Act of 2013, which sought to amend the Equal Pay Act provisions of the Fair Labor Standards Act, failed to pass on April 9, 2014 when Senate Republicans unanimously rejected the legislation. The amendment, similar to the Order, aimed to address the pay gap by strengthening employees’ protection from sex-based discrimination in earnings. Proposed changes included limiting the number of factors that allow for differential treatment in wages, and placing a higher burden of proof on employers who are sued for alleged sex discrimination to demonstrate the legitimacy of differential treatment.

Republicans have added to the debate by attacking the “77-cent” statistic President Obama and Democrats have continuously cited as representing the gap. Republicans point to the U.S. Bureau of Labor Statistics’ “Highlights of Women’s Earnings in 2012” report that sets the pay gap at a narrower 81%. It matters how you adjust for different factors, Republicans argue, and citing the 77-cent figure is faulty and political move. The Republicans’ position was strengthened when the Administration was confronted with data demonstrating women in the White House made, on average, less than their male colleagues.

The failure of the Fairness Act to pass, combined with the Senate’s April 30, 2014 vote not to raise the minimum wage, makes it likely that employers, at least non-federal contract employers, will not be impacted by wage changes for men and women anytime in the near future.