The Paycheck Fairness Act’s Solution to the Gender Pay Gap: Make It Impossible to Defend Against Claims of Discrimination

Congress hit a wall this week on the Paycheck Fairness Act, which narrowly failed 49-50 on a Senate vote on Tuesday to break a filibuster. The legislation would make it all but impossible for businesses to defend against complaints of pay discrimination against women. Its backers slammed the outcome as a setback for gender equality.

“Senate Republicans again have failed to listen to the desire of their constituents and grant women this basic right: equal pay for equal work,” tweeted Connecticut Rep. Rosa DeLauro, author of the House of the bill. “But it does not end here. We will never give up on this fight.”

That’s not an idle threat, given the possibility that the Senate could change the rules for the filibuster. In that case, the Democrats need only to flip one vote to get it through.

There is a little reason to think that the Paycheck Fairness Act would do much to ensure equal pay. While it is undeniable that there is a pay gap between in what the average woman earns compared to the average man, there is scant evidence that this is due to discrimination. The legislation’s solution to that issue was to make facts and evidence irrelevant to the question of whether a business gets punished.

The Fair Labor Standards Act (FLSA) prohibits pay discrimination by sex but only if sex itself is the reason. If any pay difference between genders is due to unrelated factors like seniority or productivity, that doesn’t count as discrimination under the FLSA. The Paycheck Fairness Act would amend the FLSA to put the burden of proof on the business, set the bar for proving innocence high, and void any defense if the complainant can merely demonstrate that “an alternative employment practice exists that would serve the same business purpose without producing such differential.”

But how much discrimination is there really? Women on average earned 82 cents for every dollar that men received in 2020, according to a March report by payscale.com. But when the survey controlled for differences in job title, experience, education level, industry, and location, the gap shrank to 98 cents for every dollar that men earn.

A Pew Research Center analysis released last month put the pay gap at 84 cents for every dollar men earned. Researchers Amanda Barroso and Anna Brown found that this gap was due to mainly due to “measurable factors” such as education level, work experience, and type of profession. “Even though women have increased their presence in higher-paying jobs traditionally dominated by men, such as professional and managerial positions, women as a whole continue to be overrepresented in lower-paying occupations relative to their share of the workforce,” Barroso and Brown reported.

In short, to extent that men earn more it is because they tend to have education that allows them to demand higher salaries, they gain more seniority from staying at the same job longer, and they work in professions that pay more to start with. Women in the same professions with the same levels of education earn almost exactly the same.

On top of that, both groups found that the gap has been shrinking steadily. In 1980, women earned only 64 cents for every dollar men earned, Pew found. Payscale.com reported that the gap fell by 8 cents per dollar since 2015.

The unfair and unfortunate part is that women still face obstacles in overcoming this gap. During the COVID-19 crisis, for example, parents faced with the dilemma of “Who should stay home to watch the kids while they’re barred from school?” tended to be pragmatic and choose the lower earner. More often than not that was the female half, resulting in a 33 year-low for workforce participation by women. When those women return to the workforce, they’ll find themselves as much as one year behind their male coworkers in terms of seniority.

The Paycheck Fairness Act would mean that situations like that would result in a lot more litigation even though the businesses weren’t discriminating. It is hard to see how that benefits anyone other than lawyers.