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Time to Pass the Paycheck Fairness Act

By Roberta D. Liebenberg, chair of the ABA Commission on Women in the Profession

(as published in the National Law Journal April 19, 2010)

The ABA Commission on Women in the Profession's Roberta D. Liebenberg

Roberta D. Liebenberg, chair, Commission on Women in the Profession

The very first bill signed into law by President Obama last year was the Lilly Ledbetter Fair Pay Act, which overturned the U.S. Supreme Court’s Ledbetter decision and extended the time within which employees can file a Title VII pay discrimination claim. While it was vitally important to keep the courthouse doors open for women who have experienced pay discrimination, it is equally important that Congress now take action to prevent such discrimination from happening in the first place.

Just three weeks before enactment of the Ledbetter Act, the House of Representatives overwhelmingly passed the Paycheck Fairness Act, H.R. 12, S. 182, which would strengthen the Equal Pay Act by eliminating certain loopholes and amending outdated provisions that have prevented that act from fulfilling Congress’ intent to eliminate pay discrimination on the basis of sex. However, more than a year has gone by without any action by the Senate, and the time has come for it to finally pass this critical legislation, which was supported by the _’s House of Delegates at its recent meeting in Orlando, Fla. Together with the Ledbetter Act, the Paycheck Fairness Act will create a climate in which pay discrimination is not tolerated and will provide women and the federal government with the necessary tools to make substantial progress on pay equity.

When Congress passed the Equal Pay Act in 1963, working women earned just 59 cents for every dollar earned by men performing the same work. In the nearly half-century since then, women have progressed at a glacial pace and today earn just 77 cents for every dollar earned by their male counterparts. This wage differential exists in all 50 states and affects women at every educational and occupational level, including women lawyers. The pay disparity is particularly acute for women of color. African-American women earn just 62 cents and Hispanic women earn only 53 cents for every dollar paid to white men.

With a record 71 million women in the workforce, wage discrimination hurts the majority of American families, particularly single-parent families, 80% of which are headed by women. Pay discrimination not only adversely affects the current economic well-being of working women; it also undermines their retirement security, as retirement benefits are often based on lifetime earnings. As a result of the recession, more and more women have become their family’s breadwinner, making pay equity all the more imperative.

The continued pay disparity between men and women clearly demonstrates that the status quo is not acceptable and that the Equal Pay Act needs to be strengthened. The Paycheck Fairness Act would do so and place women on the same level playing field as those who have experienced pay discrimination on the basis of their race or national origin. For example, it would allow prevailing plaintiffs in Equal Pay Act cases to recover compensatory damages and, if the employer has “acted with malice or reckless indifference,” punitive damages as well. Such damages are already available to those who experience pay discrimination based on race or national origin.

Allowing the recovery of compensatory and punitive damages is necessary because the current limitation of Equal Pay Act relief to the recovery of back pay (and also liquidated damages for willful violations) is not an adequate deterrent to prevent pay discrimination. Moreover, the Paycheck Fairness Act would allow Equal Pay Act class actions to proceed under the “opt-out” provisions of Rule 23(b)(3) of the Federal Rules of Civil Procedure. The Equal Pay Act was adopted prior to Rule 23 and requires putative class members to “opt in” if they want to participate in a proposed class action. Once again, this amendment is needed in order to place Equal Pay Act plaintiffs in the same position as other victims of pay discrimination, to whom the “opt-out” provisions of Rule 23(b)(3) have long applied.

Also, the Paycheck Fairness Act would strengthen the Equal Pay Act by clarifying the “factor other than sex” affirmative defense, would prohibit employer retaliation for sharing of salary information by most employees and would modify the provision concerning wage comparisons for employees working at the same “establishment” in order to reflect modern workplace realities. The act would also reinstate the collection of certain data by the Department of Labor and require the Equal Employment Opportunity Commission to take actions that will enhance its ability to detect Equal Pay Act violations.

Congress sought to eliminate pay discrimination against women when it enacted the Equal Pay Act nearly 50 years ago, but unfortunately that salutary goal remains unfulfilled. Pay equity for women is long overdue, and the Senate should adopt the Paycheck Fairness Act now, without any further delay. Fundamental fairness for tens of millions of working women demands no less.

Learn More About:  Women and the Law / Gender Bias