Do the Feds Need More Ways to Punish Businesses That Don’t Pay Women Equally? (S. 224)

What is S. 224?

(Updated August 15, 2020)

This bill would revise existing remedies and enforcement mechanisms that seek to prevent wage discrimination based on sex. Exceptions to laws prohibiting wage differentials between men and women would be limited to bona fide factors — including education, training, or experience —  among the employees whose wages differ.

Defenses based on bona fide factors can only apply if the employer demonstrates that the factor in question:

• Is not based upon or derived from a sex-based differential in compensation;

• Is job-related with respect to the position in question;

• Is consistent with the needs of the business;

• Accounts for the differential in compensation.

This defense would be inapplicable when the employee can demonstrate that an alternative employment practice exists that serves the same business purpose without leading to a pay differential and their employer refused to adopt that practice.

The prohibition against employer retaliation for complaints by employees would be revised to bar retaliation for inquiring about, discussing, or disclosing the wages of an employee in response to:

• A complaint or charge of sex discrimination;

• An investigation, proceeding, hearing or other action;

• An investigation conducted by the employer.

It would be illegal to require employees to sign a contract or waiver preventing them from disclosing information about their wages. Employers who violate sex discrimination prohibitions would be liable for a civil action for compensatory or punitive damages — although the federal government would be exempt from paying the punitive fines.

EEOC would issue regulations related to collecting compensation data from employers to analyze data regarding the sex, race and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.

Argument in favor

It's the 21st century — there's no reason that women shouldn't make the same amount of money as men for doing the same work. The federal government needs to ensure that pay discrimination becomes a thing of the past.

Argument opposed

There are plenty of reasons that one worker should make more money than another — including education, experience, and training. Wage disparities are often the result of differences in people’s abilities, not gender discrimination.

Impact

Workers who have claimed that they have been subjected to pay discrimination, businesses accused of pay discrimination, and relevant federal agencies — especially the EEOC and Bureau of Labor Statistics.

Cost of S. 224

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Barbara Mikulski (D-MD) believes that:

“Equal pay is not just for our pocket books, it’s about family checkbooks and getting it right in the law books. The Paycheck Fairness Act ensures that women will no longer be fighting on their own for equal pay for equal work.”

"We cannot move ahead if half the population is left behind. Women — and this country — are ready to move forward. Anyone who argues differently is on the wrong side of history."

A version of this bill that was introduced during the 113th Congress was advanced to the Senate floor for a vote, but failed to reach the 60 vote threshold needed for cloture on a 52-40 margin.

Of Note: In 2009, the Department of Labor requested the publication of a report detailing the causes of the wage disparity between men and women:

“This study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices made by both male and female workers.”

Claims that women make 77 cents for every dollar earned by men have been enthusiastically embraced by some and brushed aside as a statistical myth by others in pursuit of their respective policy goals. A deeper examination of the issue done by the American Association of University Women put the figure closer to 91 cents for every dollar men earn. Another analysis in Slate highlighted observations that such figures are an oversimplification of a complex issue, which discount personal choices made by male and female workers.

The Obama administration has emphasized that women be paid equally, but 2014 statistics showed that women were earning about 87 percent of what their male counterparts were in the White House. Things were no different in 2009, and the 13 percent wage gap between men and women in the Obama administration has persisted.

Media:

• Sponsoring Sen. Barbara Mikulski (D-MD) Press Release
• List of Supporting Organizations
• Delmarva Now
• DailyKos (In Favor)
• Planned Parenthood (In Favor)
• RealClearMarkets (Context - Opposed)
• Wall Street Journal (Context - Opposed)

Summary by Eric Revell
(Photo Credit: Flickr user Seattle Municipal Archives)