Madam Chair, I rise in opposition to the Byrne amendment. Madam Chair, don't be mistaken. This amendment is a clear attempt to undermine the fundamental objectives of the Paycheck Fairness Act, which are to engender pay disparity by, in…
Madam Chair, I rise in opposition to the Byrne amendment.
Madam Chair, don't be mistaken. This amendment is a clear attempt to undermine the fundamental objectives of the Paycheck Fairness Act, which are to engender pay disparity by, in part, further clarifying congressional intent so that courts can no longer dismiss meritorious claims.
The Paycheck Fairness Act fixes current employment discrimination and pay discrimination laws, laws that have proven insufficient, given that women still earn 80 cents on the dollar compared to similarly situated White men. And, of course, the disparity for women of color is even greater.
Under the current Equal Pay Act, an employer is not liable for gender pay disparity if the disparity is due to merit, seniority, quality of production or ``a factor other than sex.'' Some courts have interpreted the ``factor other than sex'' criteria so broadly that it frustrates the codified intent of the Equal Pay Act.
For instance, some courts have found that the ``factor other than sex'' need not be business related or even related to the particular job in question. Some courts have interpreted the ``factor other than sex'' defense to include ``market forces,'' or worse, accepted the argument that pay disparity can be explained by an employer's ``random decision.''
Those interpretations are nothing more than a lifesaver for pretextual discrimination. This amendment does the same thing.
My Republican colleagues' suggestion that the Paycheck Fairness Act eliminates the ``factor other than sex'' defense is contradicted by the text of this bill. An employer may still raise a ``factor other than sex'' defense provided that the ``factor other than sex'' be bona fide, job related, and required by business necessity.
This amendment's attempt to strike section (3)(a)(3), which explains what constitutes a bona fide factor, is an attempt to create ambiguity so that courts continue to interpret the act's protection in a narrow way.
This bill provides necessary clarity that this bona fide factor defense is only available when there is a real business necessity. This bill ensures that there is a connection between the pay disparity and the specific job in question. This amendment is contrary to the congressional intent of the underlying bill, and I urge my colleagues to vote ``no.''
Mr. Chair, I reserve the balance of my time.
Mr. Chairman, this bill clarifies that the ``factor other than sex'' is only available on a bona fide job-related and business necessary reason.
It clarifies that this defense is not available where the employee demonstrates that a reasonable alternative employment practice would serve the same business purpose without producing a pay disparity and that the employer refused to adopt such an alternative practice.
Carefully consider those words. This is a burden-shifting provision that would simply allow an employee to show a reasonable alternative. It adds nothing to an employer's existing burden. It only allows an employee to rebut that defense with evidence.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I think it is important, given that we are having a discussion here over who understands the text of the bill, to read it directly into the Record.
``The bona fide factor defense, described in subparagraph (A)(iv) shall apply only if the employer demonstrates that such factor (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job related with respect to the position in question; (iii) is consistent with business necessity; and, (iv) accounts for the entire differential in compensation at issue.''
It is very clearly set forth in the text.
Mr. Chairman, I, therefore, continue to urge my colleagues to vote ``no'' on the Byrne amendment, and I reserve the balance of my time.
Mr. Chairman, I think it is my colleague from Alabama who is confused about the wording of this text. His amendment would specifically eliminate the wording that I just read into the Record.
Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, this amendment eliminates clarity. It simply replaces it with the words ``bona fide,'' with no additional definition or guidance, thereby ensuring that this defense will continue to be misunderstood, misused, and incorrectly applied by the courts.
Mr. Chairman, I yield back the balance of my time.
Madam Speaker, I rise in opposition to the motion to recommit.
Madam Speaker, I am opposed to all caps on attorney's fees in this type of case.
The only criteria for the amount of attorney's fees charged should be reasonableness in the context of the case itself.
I have spent more than 30 years in courtrooms, most of that time representing the defense in civil matters, almost always for companies; in other words, against the very trial lawyers we speak of.
So I have no bias in favor of those lawyers, but let me tell you this: representing plaintiffs in employment cases is a very hard job. These lawyers work for every penny they earn. They take cases that put their own livelihood at risk.
Many employment cases take years to resolve. Often they have to go to court over and over to litigate discovery and pretrial matters, and all the while, they are not collecting a paycheck from that case, because they have taken it on a contingent fee basis.
Without an award at the end of the case, they receive nothing, and they advance out-of-pocket expenses.
But even more important, without these lawyers, low-income female employees with legitimate grievances would have no recourse. Only with a competent lawyer's help can they proceed.
This motion, if passed, would discourage lawyers from taking these cases. And if they don't take these cases, employees, workers, families lose out.
The only test for attorney's fees should be reasonableness. Courts and judges are well equipped to determine whether a fee is reasonable, far better equipped than Congress is.
Madam Speaker, I yield to the gentlewoman from New Jersey (Ms. Sherrill).
Madam Speaker, I yield back the balance of my time.