CEI’s WorkplaceChoice.org Scores Paycheck Fairness Act

The Competitive Enterprise Institute scored Wednesday’s vote in the U.S. Senate on the passage of S. 3772, The Paycheck Fairness Act, a bill that would fundamentally change the Equal Pay Act of 1963, which prohibits employers from paying women less than men for performing the same work in the same workplace.

The score will be incorporated into CEI’s Congressional Labor Scorecard that can be seen in full on CEI’s labor policy website, WorkplaceChoice.org.

CEI opposes numerous provisions of the proposed bill:

• Sections 3(a) and (b) proposes to sharply curtail employers’ defense to discrimination claims based on “any factor other than sex,” and their ability to discipline employees.
• Section 3(c) would expose employers for the first time to compensatory and punitive damages for unintentional sex discrimination and promote class action lawsuits. It would also broaden a “loser-pays-all” attorney’s fees provision against the defendant employer, though the same does not and would not apply to an unsuccessful employee plaintiff.
• Section (4) would mandate that the EEOC and the Office of Federal Contract Compliance Programs “provide training to Commission employees and affected individuals and entities on matters involving discrimination in the payment of wages.” A plain reading could afford plaintiffs and their attorneys training in how to sue employers.
• Sections (6) and (7) would require the Secretary of Labor to tell employers, unions, and the general public how to eliminate pay disparities between men and women, rewarding compliant ones. The Secretary would conduct studies, publish materials, convene a national summit, and become involved in state and community education on the topic.
• Section (8) and (9) would require new federal regulations “for the collection of pay information data from employers as described by the sex, race, and national origin of employees.” Data would be mined in the Current Employment Statistics survey and re-instated Equal Opportunity Survey, taking limits off the Office of Federal Contract Compliance Programs in use of the data for enforcing against employers. Public availability of the data appears to be aimed at helping the plaintiffs’ trial bar sue employers.

This bill would make America more litigious and saddle virtually all the nation’s businesses with more red tape and costs, even though gender-based employment discrimination is already illegal. The same legislation received a vote last Congress—during an election year—and there was scant reason to believe Senators would change their position. As expected, this political stunt was voted down.

For the 113th Congress’ Senate vote 103 on cloture on the motion to proceed to the Paycheck Fairness Act, S. 2199, the vote was 53 Yeas to 44 Nays, with three Senators (Coburn, Cornyn, and Cruz) not voting. Sixty votes were needed for cloture to proceed to the bill, and thus the bill will not be discussed on the Senate floor.

Only Senator King, an Independent of Maine who caucuses with the Democrats, split with his caucus on this vote. All Republicans opposed cloture, and all Democrats supported cloture, with the lone exception of Majority Leader Harry Reid who opposed cloture for the procedural reason that he is thereby afforded the opportunity to resurrect the cloture motion.