Gender warriors are not wasting any time in 2009. Two pieces of falsely titled “gender equity” legislation, the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act, are set to be the first votes of the new House. Both bills are touted as protecting “equal pay” but, in reality, do nothing of the sort. The Equal Pay Act of 1963 already requires equal pay for equal work. So, whenever modern day politicians use the term, something else is usually afoot. The recent push for pay equity is no different.
Both pieces of legislation have popped up before. The Paycheck Fairness Act passed the House in the last Congress, but was never sent to the Senate floor. The premise of the legislation is that American workplaces are systematically hostile to women and that the government must therefore intervene to provide more protection for women.
The Paycheck Fairness Act would take significant steps toward the idea of “comparable worth,” aka government intervention (rather than market mechanisms such as supply and demand) in determining salary levels for different jobs to ensure “fairness.” Under the bill, the Department of Labor would issue guidelines that compare the wages of different jobs to give employers an idea of what is considered a fair wage. It would also subject employers to unlimited compensatory and punitive damages, even for unintentional pay disparities. As if that doesn’t leave employers vulnerable enough, the bill would also prevent employers from defending differences in pay as based on factors other than sex (for example, productivity, years in the workforce, education level, etc.). In other words, the bill is a trial lawyer’s dream come true. The potential for costly litigation is endless, which is likely to raise the cost of employment and discourage workplace flexibility, both of which are bad news for women.
Another bill inviting lawsuit abuse is the Lilly Ledbetter Fair Pay Act, which passed the House in the last Congress, but was blocked by a Republican filibuster in the Senate. The bill’s namesake, Lilly Ledbetter, gained notoriety when she lost her equal pay case against Goodyear Tire and Rubber Co. before the Supreme Court. Ledbetter lost her case due to statutory timing limits, and the bill seeks to extend those statutory limits for future pay equity cases (giving employees more time to file a suit for wage discrimination).