Mr. Speaker, I include in the Record a letter from the American Bar Association supporting passage of the Paycheck Fairness Act. American Bar Association, April 13, 2021. Re ABA Urges Passage of the Paycheck Fairness Act. Dear…
Mr. Speaker, I include in the Record a letter from the American Bar Association supporting passage of the Paycheck Fairness Act.
American Bar Association,
April 13, 2021.
Re ABA Urges Passage of the Paycheck Fairness Act.
Dear Representative: On behalf of the American Bar
Association (ABA), the largest voluntary association of
lawyers and legal professionals in the world. I am writing to
urge you to vote for passage of the Paycheck Fairness Act,
which would update the Equal Pay Act of 1963 enacted by
Congress almost 60 years ago to prohibit gender-based pay
inequality. This legislation, which is expected to come to
the floor this week, has the support of working men and women
across the country who want this nation to live up to its
expressed commitment to equal pay for equal work.
The Equal Pay Act of 1963 prohibits an employer from paying
unequal wages to male and female workers who perform jobs
under similar work conditions that require substantially
equal skill, effort, and responsibility unless there is a
legitimate reason for a pay differential.
The Paycheck Fairness Act does not alter the basic scheme
of this statute or impose unreasonable burdens on employers;
indeed, the majority of its proposed changes are borrowed
from other civil rights statutes that have proved more
effective in eradicating workplace discrimination.
We would like to respond to some persistent misperceptions
regarding this important legislation:
Enactment of this bill will not compel businesses to pay
their female workforce substantially more money to eliminate
the existing wage gap. The purpose of this bill is to update
the Equal Pay Act, which only applies in situations where
women or men are receiving unequal pay for equal work. It
does not create a new mandate. Employers already have a legal
obligation to pay men and women equal wages for equal work
unless there is a legitimate reason for the differential.
Enactment of this bill will not interject the government
into the pay decisions of businesses. The Paycheck Fairness
Act does not tell employers what factors to use to set pay;
it only requires that pay decisions are job- and business-
related.
Enactment of this bill will not make employers liable for
any and every wage differential. An employer will still have
four affirmative defenses and will not be guilty of wage
discrimination if a pay differential is based on (i)
seniority, (ii) merit, (iii) a system that measures quantity
or quality of production, or (iv) a ``factor other than
sex.'' 29 U.S.C. 206(d)(l). The only difference is that
Paycheck Fairness Act will resolve uncertainty in the law
over how to apply the fourth defense by redefining it as ``a
bona fide factor other than sex, such as education, training,
or experience.''
Enactment of a provision to clarify the ``factor other than
sex'' defense will not eviscerate legitimate use of the
defense. It is intended to prevent employers from asserting
that unequal pay was the result of market force-derived
excuses such as prior salaries or negotiation outcomes. A
bona fide factor other than sex must be job-related,
consistent with business necessity, and account for the
entire differential in compensation at issue. The only time
this defense would not apply would be in situations where an
alternative employment practice is available that would serve
the same business purpose without producing the wage
differential and the employer has refused to adopt it.
Enactment of this bill will not encourage more lawsuits and
jeopardize post-pandemic economic recovery. The bill is
designed resolve uncertainties in the law and increase
employer compliance with the Equal Pay Act, not to encourage
more lawsuits.
The bill's strengthened remedies, which align with those
available in other employment discrimination statutes, will
encourage employers to review their wage-setting practices
and rectify those that are based on invalid justifications.
Men and women who are paid fairly have no incentive to
jeopardize their jobs and subject themselves to costly, time-
consuming, and emotionally taxing lawsuits brought against
their employers.
The bill's clarification of the ``factor other than sex''
defense will not spawn new litigation. Instead, it will
provide guidance to the courts and resolve uncertainty in the
law. The standard, which is adapted from Title VII
discrimination cases and codified in the Civil Rights Act of
1991, is one with which courts already are familiar.
The bill will help strengthen the economy by improving the
present and future economic welfare of working women, who
comprise about one-half of the workforce and are the primary
breadwinner in more than 12 million American families.
We urge you to demonstrate your commitment to equal pay for
equal work by voting for the Paycheck Fairness Act.
Thank you for your consideration of our views.
Sincerely,
Patricia Lee Refo.
Mr. Speaker, I am pleased to strongly support H.R. 7, the Paycheck Fairness Act, a critically important bill.
As the first woman to chair the U.S. Equal Employment Opportunity Commission, I enforced the Equal Pay Act. I particularly appreciate that H.R. 7 would bring long-awaited strength to the EPA.
I especially appreciate that Congresswoman Rosa DeLauro, a great champion for equal pay, has included my Pay Equity for All Act in H.R. 7, where I will focus today.
The Pay Equity for All Act would prohibit employers from asking job applicants their salary history. Even though many employers may not intentionally discriminate against applicants or employees based on gender, race, or ethnicity, setting wages based on salary history is routinely done in the workplace and can reinforce the wage gap. Evidence clearly shows that members of historically disadvantaged groups often start their careers with unfair and artificially low wages compared to their White male counterparts, and these disparities are compounded from job to job.
Job and salary offers should be based on an applicant's skill and merit, not on salary history. This bill addresses this problem by assessing penalties against employers who ask applicants for their salary history during the interview process.