[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.
____________________