[Congressional Record Volume 156, Number 150 (Wednesday, November 17, 2010)]
[Senate]
[Pages S7926-S7928]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         PAYCHECK FAIRNESS ACT

  Mr. ENZI. Mr. President, I want to talk about the paycheck unfairness 
bill that is before us. A better title for this bill should be the 
``jobs for trial lawyers act.''
  I am confident that there is no Member of this Senate who would 
tolerate paying a woman less for the same work simply because she is a 
woman. As husbands, fathers, and mothers of working women, I believe we 
all recognize the gross inequity of discrimination in pay based on 
gender. Congress has put two laws on the books to combat such 
discrimination--Title VII of the Civil Rights Act of 1964 and the Equal 
Pay Act of 1963. These are both good laws that have been well utilized 
to combat discrimination where it exists, and I support the full 
enforcement of these laws. Businesses that discriminate against a 
female employee because of her gender must be corrected and penalized.
  But what the majority is trying to push through here today is of a 
very different nature. The so-called Paycheck Fairness Act is actually 
a ``jobs for trial lawyers act.'' The primary beneficiary of this 
legislation will be trial lawyers. They will be able to bring bigger 
class action lawsuits--which usually result in coupons for the people 
that were disadvantaged--without even getting the consent of the 
plaintiffs, and they will have the weapon of uncapped damages to force 
employers to settle lawsuits even when they know they have done nothing 
wrong. The litigation bonanza this bill would create would extend even 
to the smallest of small businesses, only further hampering our 
economic recovery.
  There are a number of other concerning provisions of this 
legislation, such as authorizing government to require reporting of 
every employer's wage data by sex, race, and national origin. Had this 
bill gone through committee markup under regular Senate order, we may 
have been able to address some of these concerns. But this bill--like 
so many other labor bills in the HELP Committee jurisdiction of this 
Congress--has circumvented regular order.
  Mr. President, I ask unanimous consent to have printed in the Record 
a list of letters from a total of 44 groups opposing this legislation 
and 4 newspaper op eds.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Groups Opposing PFA, 11/17/2010

       1. Alliance for Worker Freedom; 2. American Bakers 
     Association (coalition letter); 3. American Bankers 
     Association (coalition letter); 4. American Hotel & Lodging 
     Association (coalition letter); 5. Associated Builders and 
     Contractors; 6. Associated General Contractors (coalition 
     letter); 7. Associated Industries of Massachusetts; 8. 
     Coalition of Franchisee Associations; 9. College and 
     University Professional Association for Human Resources 
     (coalition letter); 10. Concerned Women for America; 11. Food 
     Marketing Institute; 12. HR Policy Association (coalition 
     letter); 13. Independent Electrical Contractors; 14. Indiana 
     Restaurant Association; 15. International Franchise 
     Association; 16. International Foodservice Distributors 
     Association (coalition letter); 17. International Public 
     Management Association for Human Resources (coalition 
     letter); 18. Louisiana Restaurant Association; 19. Maine 
     Restaurant Association; 20. Montana Restaurant Association.
       21. National Association of Manufacturers; 22. National 
     Association of Wholesaler-Distributors (coalition letter); 
     23. National Council of Chain Restaurants (coalition letter); 
     24. National Council of Textile Organizations (coalition 
     letter); 25. National Federation of Independent Business 
     (coalition letter); 26. National Public Employer Labor 
     Relations Association (coalition letter); 27. National 
     Restaurant Association; 28. National Retail Federation; 29. 
     National Roofing Contractors Association (coalition letter); 
     30. National Small Business Association; 31. National Stone, 
     Sand and Gravel Association (coalition letter); 32. Nebraska 
     Restaurant Association; 33. North Carolina Restaurant and 
     Lodging Association; 34. Ohio Restaurant Association; 35. 
     Printing Industries of America (coalition letter); 36. Retail 
     Industry Leaders Association; 37. Small Business & 
     Entrepreneurship Council (coalition letter); 38. Society for 
     Human Resource Management (coalition letter); 39. Texas 
     Restaurant Association; 40. U.S. Chamber of Commerce; 41. 
     U.S. Commission on Civil Rights; 42. Virginia Hospitality and 
     Travel Association; 43. West Virginia Hospitality & Travel 
     Association; 44. World At Work (Requires clarification that 
     legit ER practices not covered by PFA).
                                  ____


      Bill Takes on Disturbing Pay Gap--But Offers Flawed Remedies

                          (November 17, 2010)

       All eyes will likely be on U.S. Senator Scott Brown this 
     week as he casts a decisive Senate vote on the Paycheck 
     Fairness Act, a bill aimed at helping women fight for equal 
     pay in the workplace. But while parts of the bill would be 
     useful, the measure as a whole is too broad a solution to a 
     complex, nuanced problem.
       The bill is meant to address a troublesome wage gap between 
     women and men, which has decreased over time, but still 
     persists; today, most women earn roughly 77 cents for every 
     dollar earned by men in equivalent jobs. The reasons for this 
     discrepancy are under dispute, and the Paycheck Fairness Act 
     would take some steps to protect against blatant 
     discrimination. Most notably, it would bar businesses from 
     retaliating against employees who share information about 
     their salaries with their coworkers. The bill would also 
     provide funds to train businesses to improve their pay 
     practices and train women to negotiate their salaries more 
     effectively.
       But the controversial meat of the bill is the changes it 
     would make to the legal process, amending the Equal Pay Act 
     of 1963. Where women today can only sue for back pay, the new 
     bill would allow them to seek both compensatory damages and 
     unlimited punitive damages. The bill would also make it 
     easier for workers to join class-action suits. Most 
     problematically, it would alter the burden on businesses, 
     requiring them to prove that any difference in pay is the 
     result of a business necessity, and to demonstrate why they 
     didn't adopt a plaintiff's suggested ``alternative remedy'' 
     that wouldn't result in a pay gap.
       But what if a company offers a higher salary for retail 
     workers in a more dangerous location, and more men sign up? 
     What if a male worker leverages a job offer into a higher 
     salary? Should these be illegal acts? The bill would create 
     too strong a presumption in favor of discrimination over 
     other, equally plausible explanations for disparities in 
     salaries. In addition, the threat of much higher damage 
     awards by juries might lead businesses to make quick 
     settlements for frivolous claims. (Today, about 60 percent of 
     discrimination claims tracked by the Equal Employment 
     Opportunity Commission are found to have no merit.)
       Proponents of the bill note that today's penalties for wage 
     discrimination are so anemic that there's no incentive for 
     businesses that discriminate to change their ways. A narrower 
     bill that would stiffen some penalties and ban retaliation 
     would be helpful. But companies are right to be concerned 
     that this bill, as written, is too deep an intrusion.
                                  ____


               [From the Chicago Tribune, Nov. 12, 2010]

                           Paycheck Fairness?

       Equal pay for equal work stands as a cornerstone of the 
     American workplace, and we support the principle 
     wholeheartedly. But Congress is moving toward a fix that 
     would be grossly intrusive on decision-making by private 
     businesses.
       At least one group would get a fatter paycheck from the 
     Paycheck Fairness Act: trial lawyers.
       The proposed law says that in cases where a pay disparity 
     between men and women is challenged in court, an employer 
     would have to prove there is some reason for the gap other 
     than discrimination. The employer would also have to prove 
     that the gap serves a necessary business purpose. And even 
     then, the employer could be in trouble if a court determines 
     that an ``alternative employment practice'' would serve the 
     same purpose without skewing the salaries.
       Those judgment calls go by another name: management 
     decisions. The legislation would open businesses to wide 
     second-guessing of decisions they made to hire and promote 
     the most effective work force in a competitive environment. 
     It would leave businesses with one eye on the competition and 
     one eye on what a judge might decide in

[[Page S7927]]

     hindsight is a preferable ``alternative employment 
     practice.''
       Uncle Sam to the nation's employers: We'll tell you how to 
     run your business.
       Imagine a company that pays more to workers with greater 
     experience. If women haven't been on the job as long as men, 
     they would likely earn less. The burden would be on the 
     employer to prove that experience not only yielded a 
     measurably better quantity and quality of work, but also that 
     it was the best yardstick to use. ``How are you going to 
     prove that?'' asks Camille Olson, an attorney at Chicago's 
     Seyfarth Shaw LLC who has testified against the legislation 
     on behalf of the U.S. Chamber of Commerce. ``It would be 
     very, very difficult.''
       Making matters worse, under the new law, damage awards 
     would be uncapped, and class-action procedures loosened. 
     Bring on the trial lawyers.
       The nation already has strong legal protections for women 
     in the workplace, even for cases of unintentional 
     discrimination. Under the Equal Pay Act of 1963, employers 
     can justify wage differentials only if they're based on 
     gender-neutral factors, such as education, experience, 
     productivity and market conditions.
       This bill has its heart in the right place. It even has 
     some worthwhile, less-intrusive provisions, such as 
     protection from company retaliation for workers who share 
     information about wages.
       It has been approved by the House and is slated to reach 
     the Senate floor next week. It is a high priority for the 
     Obama administration. But it is much too intrusive, and the 
     Senate should reject it.
                                  ____


               [From the New York Times, Sept. 21, 2010]

                    Fair Pay Isn't Always Equal Pay

                      (By Christina Hoff Sommers)

       Among the top items left on the Senate's to-do list before 
     the November elections is a ``paycheck fairness'' bill, which 
     would make it easier for women to file class-action, 
     punitive-damages suits against employers they accuse of sex-
     based pay discrimination.
       The bill's passage is hardly certain, but it has received 
     strong support from women's rights groups, professional 
     organizations and even President Obama, who has called it ``a 
     common-sense bill.''
       But the bill isn't as commonsensical as it might seem. It 
     overlooks mountains of research showing that discrimination 
     plays little role in pay disparities between men and women, 
     and it threatens to impose onerous requirements on employers 
     to correct gaps over which they have little control.
       The bill is based on the premise that the 1963 Equal Pay 
     Act, which bans sex discrimination in the workplace, has 
     failed; for proof, proponents point out that for every dollar 
     men earn, women earn just 77 cents.
       But that wage gap isn't necessarily the result of 
     discrimination. On the contrary, there are lots of other 
     reasons men might earn more than women, including differences 
     in education, experience and job tenure.
       When these factors are taken into account the gap narrows 
     considerably--in some studies, to the point of vanishing. A 
     recent survey found that young, childless, single urban women 
     earn 8 percent more than their male counterparts, mostly 
     because more of them earn college degrees.
       Moreover, a 2009 analysis of wage-gap studies commissioned 
     by the Labor Department evaluated more than 5o peer-reviewed 
     papers and concluded that the aggregate wage gap ``may be 
     almost entirely the result of the individual choices being 
     made by both male and female workers.''
       In addition to differences in education and training, the 
     review found that women are more likely than men to leave the 
     workforce to take care of children or older parents. They 
     also tend to value family-friendly workplace policies more 
     than men, and will often accept lower salaries in exchange 
     for more benefits. In fact, there were so many differences in 
     pay-related choices that the researchers were unable to 
     specify a residual effect due to discrimination.
       Some of the bill's supporters admit that the pay gap is 
     largely explained by women's choices, but they argue that 
     those choices are skewed by sexist stereotypes and social 
     pressures. Those are interesting and important points, worthy 
     of continued public debate.
       The problem is that while the debate proceeds, the bill 
     assumes the answer: it would hold employers liable for the 
     ``lingering effects of past discrimination''--``pay 
     disparities'' that have been ``spread and perpetuated through 
     commerce.'' Under the bill, it's not enough for an employer 
     to guard against intentional discrimination; it also has to 
     police potentially discriminatory assumptions behind market-
     driven wage disparities that have nothing to do with sexism.
       Universities, for example, typically pay professors in 
     their business schools more than they pay those in the school 
     of social work, citing market forces as the justification. 
     But according to the gender theory that informs this bill, 
     sexist attitudes led society to place a higher value on male-
     centered fields like business than on female-centered fields 
     like social work.
       The bill's language regarding these ``lingering effects'' 
     is vague, but that's the problem: it could prove a legal 
     nightmare for even the best-intentioned employers. The theory 
     will be elaborated in feminist expert testimony when cases go 
     to trial, and it's not hard to imagine a media firestorm 
     developing from it. Faced with multimillion-dollar lawsuits 
     and the attendant publicity, many innocent employers would 
     choose to settle.
       The Paycheck Fairness bill would set women against men, 
     empower trial lawyers and activists, perpetuate falsehoods 
     about the status of women in the workplace and create havoc 
     in a precarious job market. It is 1970s-style gender-war 
     feminism for a society that should be celebrating its success 
     in substantially, if not yet completely, overcoming sex-based 
     workplace discrimination.
                                  ____


               [From the Washington Post, Sept. 28, 2010]

          Paycheck Fairness Act: A Flawed Approach to Job Bias

       There should be no tolerance for gender-based 
     discrimination in the workplace, and the Paycheck Fairness 
     Act contains sensible provisions on the issue, including 
     protections against retaliation for employees who challenge 
     pay schedules. But the proposal, which builds on the existing 
     Equal Pay Act, would allow employees and courts to intrude 
     too far into core business decisions.
       The bill, which is pending in the Senate, would allow 
     employers to defend against equal-pay lawsuits by proving 
     that pay disparities between men and women were based on 
     ``bona fide'' factors, such as experience or education, and 
     that these factors are ``consistent with business 
     necessity.'' This provision would codify the current state of 
     the law as developed in the courts over the past 30 years. 
     During that time, judges pressed employers to prove the need 
     for educational requirements that had no nexus to advertised 
     jobs. Such requirements were often used to deny employment to 
     minority applicants.
       But the bill does not stop there. It also mandates that the 
     business necessity defense ``shall not apply'' when the 
     employee ``demonstrates that an alternative employment 
     practice exists that would serve the same business purpose 
     without producing such differential and that the employer has 
     refused to adopt such alternative practice.'' But what if the 
     employer has refused because it has concluded that the 
     alternative is--contrary to the employee's assertion--more 
     costly or less efficient? What if the employee and employer 
     disagree on what the business purpose is or should be?
       This approach also could make employers vulnerable to 
     attack for responding to market forces. Take an employer who 
     gives a hefty raise to a valued male employee who has gotten 
     a job offer from a competitor. Would a court agree that the 
     raise advanced a legitimate business purpose or could the 
     employer be slammed unless he also bumps up the salary of a 
     similarly situated female employee?
       Discrimination is abhorrent, but the Paycheck Fairness Act 
     is not the right fix.

  Mr. ENZI. Mr. President, the newspaper articles I have submitted for 
the Record were written by the editorial boards of the Boston Globe, 
the Chicago Tribune, and the Washington Post, while the other op ed, 
written by a guest columnist, appeared in the New York Times. I don't 
think any of these would be considered to be conservative newspapers, 
but they have taken a strong stand in the same direction and position 
that I have been speaking here.
  The bottom line is that this legislation will insert the Federal 
Government into workplace management decisions like never before. This 
intrusion will benefit trial lawyers and harm job growth and 
employment, which will affect both women and men.
  Supporters of this bill cite wage data that the Bureau of Labor 
Statistics itself says ``do not control for many factors that can be 
significant in explaining earning differences.'' In fact, studies show 
that if you factor in observable choices, such as part-time work, 
seniority, and occupational choice, the pay gap stands between 5 to 7 
percent. Let me repeat: Part-time work, seniority, and occupational 
choice reduces the pay gap to between 5 and 7 percent. Some of these 
choices are certainly personal prerogatives, and I would not question 
the choices anyone makes with regard to family obligations or job 
security and the quality of fringe benefits, such as health, 
retirement, and child care. But to a large extent, this remaining gap 
is due to occupational choice.
  It is unfortunate that this Congress has not done more to foster a 
job growth environment and improve job training programs, such as the 
Workforce Investment Act, which could train 100,000 people to be hired 
in skilled jobs--sometimes in the nontraditional roles. So instead of 
being a waitress, they might be a brick mason. We have heard that 
example in hearings. Such training under the Workforce Investment Act 
produces significantly higher wages, and that would prepare more women 
to enter higher earning occupational fields. Surely this would be a 
more reasonable solution

[[Page S7928]]

than a trial lawyer bonanza sure to disadvantage all employers and 
depress job growth to the disadvantage of all employees, which results 
in disadvantaged employees getting coupons while the trial lawyers keep 
most of the money.
  I urge my colleagues to oppose this cloture vote.
  Mr. President, I yield the floor, and I ask unanimous consent that 
the time during the quorum be equally divided between the two sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so 
ordered.

                          ____________________