WASHINGTON (CN) — A bill aimed at closing loopholes in longstanding equal pay laws passed the House on Thursday with a 217-210 vote, though it faces long odds in the Senate.
The Paycheck Fairness Act advanced out of committee on Wednesday, with Democrats arguing it would be a meaningful step toward ensuring women in the workplace earn the same wages as their male counterparts.
Most Republicans, on the other hand, rejected the bill sponsored by Democrat Representative Rosa DeLauro of Connecticut, claiming its goals are already taken care of by existing employment discrimination laws as well as the Equal Pay Act of 1963.
The Democrat-controlled House last passed the Paycheck Fairness Act in 2019 but the measure died in the Republican-controlled Senate. Even though Democrats now have a narrow hold on the upper chamber, the bill would need 60 votes to pass because of filibuster rules. Democrats have 50 seats plus Vice President Kamala Harris' tie-breaking vote.
During President Joe Biden’s campaign for the White House, pay equity became a plank of his platform and Harris, the first woman to serve as vice president, has also regularly championed closing the gender pay gap throughout her Senate career and when she ran for president in 2020.
Under the Paycheck Fairness Act, fair labor standards under the Equal Pay Act of 1963 signed into law by President John F. Kennedy, would receive a revamping. Signing the bill nearly 60 years ago, Kennedy remarked that women made up one of every three workers, noting some 25 million women were employed. He correctly predicted from the Oval Office those figures would only skyrocket and he said adjusting the playing field by instilling new protections for women’s pay would strengthen “another structure basic to democracy.”
Today, women make up most of the workforce, according to the Bureau of Labor Statistics, holding 50.4% of all jobs as of last year. That was a slight increase from 2019 when women retained 49.7% of all jobs. In the last six decades, women have not only made up a bigger share of the labor force but they are also more educated, receiving more bachelor’s degrees than men since 1981, according to the Institute for Women’s Policy Research.
Despite those advancements, women’s wages have stagnated behind men’s and that includes wages for the same exact work and across all industry. From caretaking to professional sports, women earn less on average even when they have more experience.
When parsed out further by demographic, the pay gap quickly becomes a chasm. While white women earned about 80 cents for every dollar a man did last year, Black, Native American and Latina women earned just 63 cents, 60 cents and 55 cents, respectively. Only Asian American Pacific Islander women earned more, taking home an average of 85 cents for every dollar, according to the U.S. Census Bureau.
“How can you say to your mother, sister, wife or daughter that they should not receive the same pay for the same job?” Speaker of the House Nancy Pelosi lamented during a press conference ahead of the bill’s passage on Thursday.
The Paycheck Fairness Act is different from its 1963 predecessor in subtle but significant ways.
The Equal Pay Act barred employers from discriminating on the basis of sex by prohibiting lesser pay for identical work, but the law stipulates a myriad of ways employers can defend their decision to do exactly that.
An amorphous clause line in the 1963 law, according to DeLauro and the bill’s supporters, is exactly what has caused women to lag behind and find little to no recourse in court when they allege unequal pay. The provision states pay disparities are permitted when there is a “differential based on any other factor than sex,” like a person’s professional experience.
The Paycheck Fairness Act attempts to close that loophole and requires employers show precisely what they rely upon when making wage decisions. Under the new bill, employers would need to prove their choice to pay someone less is specifically related to the job itself and “consistent with business necessity.” In other words, if nothing in the workplace credibly necessitates the employer pay a woman less for doing the same work, then she should earn the same wage.
Businesses often rely on experience or education to justify higher pay and the “necessity” criteria doesn’t remove that consideration from the equation. But the new bill, in effect, would make an employer demonstrate why the disparity in compensation exists.
The legislation also makes it illegal to stop employees from discussing their wages and bars employers from relying on a person’s salary history to determine their current pay. For the bill’s proponents, this is essential – if a woman has historically been paid less over the course of her career, they say, she is now trapped in a cycle of inequity she can never escape.
Opponents to the legislation, like the U.S. Chamber of Commerce, argue it will result in a bonanza of ill-gotten riches for trial lawyers. The organization was ranked by Open Secrets as the biggest lobbyist in the nation thanks to its whopping $81 million in donations in 2020. Most of those funds, according to the Center for Responsive Politics, have gone toward Republican-supported causes.
In a letter last month to members of the House Committee on Education and Labor, the group's executive vice president Neil Bradley urged lawmakers to reject the Paycheck Fairness Act, saying it would fail to stop discrimination and would only gum up the courts by permitting baseless class actions.
As the law stands now, class actions can be trickier for members to bring under the Equal Pay Act because that law was adopted before modern day federal class action rules were issued. Federal class action provisions require plaintiffs to opt into a lawsuit of their own accord. In retaliatory or discriminatory work environments, that premise can be a nonstarter, so the Paycheck Fairness Act would make it so that class members are automatically considered part of the class action until they opt out.
Also different from existing Title VII discrimination protections on the books is the Paycheck Fairness Act's proposal to eliminate caps on damages and not limit awards to backpay.
“Mothers and daughters lose about $1 trillion a year because of the wage gap,” Texas Democratic Representative Al Green said from the floor of the House on Thursday.
The Democrat lawmaker isn’t far off. According to a March report by National Partnership for Women and Families, women employed full time last year lost a combined $986 billion because of the wage gap, leaving them significantly less money than men to support themselves or their families.
As the bill makes its way to the Senate, Green put it to fellow lawmakers simply.
“For those men who don’t have a really good reason to vote for it: it’s about the fact that every woman gave birth to every man alive. So, for all of the suffering, we ought to vote for this bill because we’re here as a result of some woman suffering for us,” he said.
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