Monday, April 14, 2014

Equal Pay for Equal Work: Several Pieces to Address

This article first appeared on The Epoch Times    


     Democrats and liberals alike have been championing equal pay for equal work for some time much to the dismay of Republicans who believe Democrats are just trying to gain political points.  Last week, Republicans blocked the Paycheck Fairness Act from being considered in the Senate.  Liberals berated the conservative ideology that women who earn less than men for the same job in America is not an issue and that they (the Republicans) should be ashamed for blocking legislation that aimed to correct it.  

     Many Republicans believe that the bill at hand is not good policy and would not further the Democrats' goal.  In fact, Angus King (I-ME, who typically caucuses with Democrats) joined Senate Republicans to block the legislation from coming to a vote stating, "I’m wholly committed to equal pay for equal work, but I just felt this bill had some provisions that would not further the goal and, in fact, would be very burdensome, particularly the provision that, in effect, requires a business to prove a negativity."  Good intentions do not always equal good policy, and it is important to make sure that Democrats are fighting for the good cause in a sensible way.

     There are a few other issues at play here regarding this fight.  As Molly Ball of the Atlantic stated on MSNBC's "Up with Steve Kornacki" this weekend, it may appear as if the Democrats are trying to "take another bite at the apple" by "going back to the well" following the passage of the Lilly Ledbetter Fair Pay Act of 2009, which was President Obama's first major initiative as president.  The major misunderstanding surrounding the Lilly Ledbetter Fair Pay Act is that it did not create equal pay for equal work, but rather, it redressed the outcome of a prior Supreme Court decision.  In Ledbetter v Goodyear Tire & Rubber Co., Ms. Ledbetter sued for back pay after discovering she had received poor reviews by her employer, which negatively affected her future monetary compensation.  Ms. Ledbetter asserted that had she been fairly evaluated and had not been a victim of gender discrimination, she would have made significantly more in wages.  Ms. Ledbetter sued on the grounds of Title VII of the Civil Rights Act of 1964, which required one to file a complaint against an employer within 180 days of the alleged infraction.  The Court affirmed the statute which took away much of what Ms. Ledbetter was previously awarded in lower courts for owed back pay.  The legislation, which bears her name, amended Title VII to allow "an aggrieved person" to collect "back pay for up to two years preceding the filing of the charge" negating Goodyear's argument that Ms. Ledbetter was not entitled to pay prior to the old 180 day filing period rule.

     Currently, the Paycheck Fairness Act would legitimize and allow more women access to the courts seeking to equate gender discrimination to race discrimination (which would provide for greater legal clout.)  The law would also ensure "equal protection pursuant to Congress’ power to enforce the 5th and 14th Amendments."  One way in which this Act allows for greater legitimacy in court access is by making employers who violate sex discrimination laws liable to civil actions.  A pending class action law suit being linked to this legislation involves a woman who worked for one of the largest retail jeweler companies in the country.  She discovered that a male employee who had less experience was making more money than the top salesperson on staff, who was a woman.  This was the case company-wide: all of the men were making more than all of the women.  Additionally, allegations of sexual discrimination and hostile working conditions have been brought against that jeweler nationwide in the class action suit.  

     Additionally, The Paycheck Fairness Act would correct the claims in the class action suit against the jewelers by 1) amending the Civil Rights Act of 1964 to force the Equal Employment Commission to include wage data between men and women, which would be used to enforce federal equal pay standards and 2) forcing the Bureau of Labor Statistics and the Secretary of Labor to conduct annual surveys regarding pay between men and women thus allowing for greater transparency and providing tangible evidence to be brought forth.  It also prevents retaliatory methods by employers for employees who discover the wages of fellow employees, which provided a bulwark for employees to challenge unfair wages because they were never supposed to know what others made (Lilly Ledbetter was tipped-off about her wage discrepancy by an anonymous source, otherwise, she would never have known).   

     While it may seem that Democrats are "taking another bite of the apple," there are several statutory loopholes that need to be corrected in order for them to achieve their overall goal.  When courts examine individual claims, there are instances where differences in the law arise; case in point: Lilly Ledbetter.  Other suits challenging pay equality have done so under different statutory grounds.  The Court in Ledbetter made their decision based on the statute, which warranted Congress to come up with a legislative fix.  The Paycheck Fairness Act is attempting to play a similar role in amending the Fair Labor Standards Act among other statutes.  The Lilly Ledbetter Fair Pay Act also sought to broaden applicability to other statutes such as the Civil Rights Act, Rehabilitation Act, and Americans with Disabilities Act.  Additionally, under Section 5 of the Fourteenth Amendment, Congress has the authority to enforce equal protection and due process through legislation, to which the Paycheck Fairness Act hints.  

     There are different ways in which courts examine suits against the government and the private sector brought by plaintiffs using varying precedents and legal tests.  Congress is merely trying to cover all the bases and protect the interest of gender equality in the workplace that may arise under several discrimination statutes.  In the larger scheme, with legislation such as the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act, Congress is seeking to bolster anti-discrimination laws (not just gender pay equity), which previously have been challenged and weakened by courts.  There is not just one sweeping fix to remedy the issue, which the Democrats are trying to address.  It is going to take several attempts.  
   

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