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Conservatives’ Stab at Pay Equity Falls Short

Sen. Heller’s Bill Lacks Key Provisions to Close the Gender Wage Gap

SOURCE: AP/Manuel Balce Ceneta

Sen. Dean Heller (R-NV) speaks during a news conference on Capitol Hill in Washington, Thursday, September 8, 2011.

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If more evidence was needed that there is a war on women, we got it on Tuesday when the Senate blocked the Paycheck Fairness Act on a straight party-line vote. The final vote was 52 voting in favor (all Democrats and independents) and 47 voting against (all Republicans)—short of the 60 “yes” votes needed to advance the bill.*

The Paycheck Fairness Act would have made it easier for women to discover if they were being discriminated against, provided training for women and girls so that they were better equipped to advocate on their own behalf, and would have increased data collection on the gender wage gap in order to develop better solutions to the problem.

In an effort to show that conservatives in Congress are not completely oblivious to the needs of their constituents, Sen. Dean Heller (R-NV) introduced the End Pay Discrimination Through Information Act the day before the vote on the Paycheck Fairness Act. This bill’s appearance is undoubtedly due to the fact that registered voters overwhelmingly support pay equity laws, including 87 percent of women, 77 percent of Republicans, and 87 percent of independents.

This support should not be surprising, either. Nearly two-thirds of women are the breadwinners for their families or share that responsibility with a partner, and the paychecks women bring home are vital for a growing number of families across the political spectrum. When their paychecks are short due to discrimination, it hurts not only individual women but their families as well.

The problem is that the bill Sen. Heller introduced is a weak, watered-down version of the Paycheck Fairness Act that simply does not go far enough to empower women to seek redress if they find they are being discriminated against. And it does nothing to address the root of the problem.

Below we note the stark differences between the End Pay Discrimination Through Information Act and the Paycheck Fairness Act and where the conservative bill comes up short.

What Sen. Heller’s bill includes

A word-for-word reproduction of the antiretaliation section of the Paycheck Fairness Act

This would prevent employers from firing workers for discussing their salaries with coworkers, and it would prevent employers from retaliating against workers who file complaints against them.

This is important, as nearly half of all U.S. workers are formally forbidden or strongly discouraged from discussing their salaries with co-workers. It is impossible for workers to fight for fair pay if they are prevented from finding out they are being discriminated against in the first place.

Lilly Ledbetter, arguably the most famous victim of gender-based wage discrimination, was only able to prove she was being paid less than her male colleagues after receiving an anonymous note, since discussing salary was not allowed at the Goodyear plant where she worked.

While this is a vital component of combating wage discrimination, it is simply not enough on its own.

What Sen. Heller’s bill leaves out

Enhanced penalties for employers who knowingly and willfully discriminate against women workers

When women win wage-discrimination lawsuits, they are only eligible to receive back pay—and any earnings they received at a new job since filing the lawsuit are deducted from that pay. The employer penalties are slight, which gives them little incentive to comply with current laws and makes pursuing legal action costly to workers who face discrimination.

The Paycheck Fairness Act would allow the courts to treat gender discrimination the exact same way discrimination based on race and ethnicity is already treated. The threat of increased penalties will likely make employers who are willfully flouting current equal pay laws rethink their actions.

Sen. Heller claims the Paycheck Fairness Act would be tantamount to “handing trial lawyers a blank check,” and Sen. Marco Rubio (R-FL) refers to the bill as “a welfare plan for trial lawyers.” But there is absolutely no evidence to suggest that the law’s passage would result in a substantial uptick in lawsuits. In fact, the number of pay discrimination complaints filed with the Equal Employment Opportunity Commission actually decreased after the Lilly Ledbetter Act passed, which extended the statute of limitations for filing.

Negotiation-skills training for women and girls

The Paycheck Fairness Act would offer competitive grants for negotiation-skills training programs for women and girls. Public agencies, educational agencies, nonprofits, and community-based organizations would be able to apply for the grants and use them to provide training on how to negotiate for salaries that are equal to those of male colleagues.

Helping women and girls strengthen their negotiation skills can help eliminate the gender wage gap in several ways. First, women are less likely to negotiate their salaries in the first place, and they are often penalized when they do. Having the skill to negotiate a better salary could give them the confidence to deal with the issue right away. Second, because raises and salaries at new jobs are often based on a worker’s current salary, the wage gap starts out smaller and grows over time, making negotiations over starting salary important in both the short and the long term. And finally, better negotiation skills could help prevent the need for lawsuits by empowering women and making them better able to seek redress early on and effectively if they find they are being discriminated against.

Training, research, education, and outreach

Under the Paycheck Fairness Act, Equal Employment Opportunity Commission employees would be trained on wage discrimination. The act would provide funds to enable the secretary of labor to conduct research on how to eliminate gender-based wage disparities and make that information available to employers, labor organizations, and the public.

The Paycheck Fairness Act would also allow the Equal Employment Opportunity Commission to evaluate the data on wages currently available and determine what else it would need to effectively enforce the Equal Pay Act. It would also provide the necessary funds to the Department of Labor to reinstate the Equal Opportunity Survey, which would lead to better evaluation of whether federal contractors and subcontractors are paying their male and female employees equitably.

It is difficult to tackle any problem—especially one as systemic as the gender wage gap—without adequate information. In order to shrink the wage gap, we must have more information on what causes it and possible remedies. This type of training and research would be an important step in eliminating wage discrimination in the first place rather than forcing women to resort to litigation after the fact.

And the reinstatement of the Equal Opportunity Survey would ensure that government dollars are not being paid to contractors who do not treat both their male and female employees fairly.

Assistance to small businesses and awards to proactive businesses

The Paycheck Fairness Act would not go into effect until six months after its passage in order to provide businesses ample time to comply. It would also allow the secretary of labor and the commissioner of the Equal Employment Opportunity Commission to develop materials to provide technical assistance for small businesses that needed to comply with the act’s requirements.

The Paycheck Fairness Act would also create the secretary of labor’s National Award for Pay Equity in the Workplace, which would be given to employers who make efforts to eliminate the wage gap between their male and female employees.

Rather than threatening small businesses, as lobbyists for business interests have claimed, the Paycheck Fairness Act would actually help small businesses treat their employees more fairly. And those already complying with the law and providing equal pay for equal work would have nothing to fear.

Upon review, it is clear Sen. Heller and conservatives in the Senate have demonstrated their hypocrisy on this issue firsthand by introducing the End Pay Discrimination Through Information Act.

* In a procedural move, Senate Majority Leader Harry Reid (D-NV) reversed his vote, which would allow the bill to be brought up again, and Sen. Mark Kirk (R-IL) did not vote.

Sarah Jane Glynn is a Policy Analyst at the Center for American Progress.

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