Sending Office: Committee on Education and the Workforce – Minority Staff
As the House is expected to consider H.R. 7—the Paycheck Fairness Act—this week, now is the time to highlight the many troubling aspects of this legislation.
It is already, as it should be, against federal law to discriminate, in pay or other employment practices, on the basis of sex. In 1963, Congress enacted the
Equal Pay Act (EPA) that made it illegal to pay different wages to employees, based on their sex, for equal work. The following year, Congress enacted comprehensive anti-discrimination civil rights protections based on race, color, national origin,
religion, and sex in Title VII of the Civil Rights Act.
Discrimination in pay on the basis of sex should not be tolerated, which is why it is a direct violation of not one, but two federal laws. I strongly support eliminating unfair and illegal wage disparities that are a product of workplace discrimination to
ensure a fair, productive, and competitive workforce—but H.R. 7 will not achieve that outcome. Take a walk through a grocery store, a drugstore, and even a hardware store, and you’ll find all sorts of products that are cleverly marketed to women. Sometimes,
the marketing isn’t even that clever—they just put the product in a pink package, mark the price up a few dollars, and pass it off as being created just for a woman. That’s the same approach taken by H.R. 7.
American women drive the American economy. Of the 2.8 million jobs created in the past year, more than 58 percent have gone to women; the number of working women in the United States—74.9 million—is higher than ever before; and one in five employer businesses
nationwide is owned by women. Business owners are not a threat to women; in fact, a significant number of job creators are women.
It is against this backdrop that I urge you to reject H.R. 7, which instead of protecting the wages and paychecks of American women, simply lines the pockets of trial lawyers around the country. The following are several of the significant shortcomings of
- H.R. 7 dramatically limits legitimate and lawful defenses: Under current law, a business owner can defend herself from a claim of pay discrimination by proving a pay differential is based not on sex, but on another legitimate factor.
Under H.R. 7, a business owner must prove that the pay decision was a “business necessity”— an impossible standard to meet which puts courts directly in charge of evaluating private business decisions.
- H.R. 7 radically and inappropriately expands remedies: The bill provides for unlimited compensatory damages, even when there is no showing of discriminatory intent, as well as uncapped punitive damages in pay discrimination cases.
Far from helping working women, this new opportunity to collect large monetary damages will only encourage trial lawyers to file more lawsuits of questionable validity and necessity.
- H.R. 7 drags workers into frivolous class action lawsuits: Under the
Fair Labor Standards Act as amended by the EPA, plaintiffs may sue on behalf of themselves and those similarly situated, but to ensure suits are merit-based and brought only by those who wish to pursue them, workers must opt in to these class actions.
H.R. 7 eliminates those safeguards, deeming all potential class members to be joined in a suit, even those who may not know of its existence, unless they affirmatively opt out. This requirement will drag workers into unwanted litigation and bind them to a
court’s decision – even when they have no say in the case.
- H.R. 7 mandates intrusive, expensive, and questionable government collection of worker pay data: Under the bill, job creators would have to submit, for the first time ever, compensation data disaggregated by the sex, race, and national
origin of employees, including hiring, termination, and promotion data, to the Equal Employment Opportunity Commission. This provision poses significant threats to employee confidentiality and privacy by creating a valuable target for hackers, both foreign
and domestic, and fails to guarantee that proprietary business information would not become public knowledge. The data collection mandate would increase from 180 to 3,660 the number of data fields business owners would have to submit to the government, raising
the cost for job creators to between $693 and $729 million annually.
While H.R. 7 is carefully crafted to benefit trial lawyers, its proponents have failed to demonstrate that its provisions are workable or will benefit working women. I have experienced unfairness in the workplace. I have known how it feels to be talked over,
talked about, and to see a lot of my ideas dismissed out of hand. In all of those experiences—experiences in which the good still far outweighed the bad—I found that the problems women like me faced didn’t have their root in the law.
I support equal pay for equal work—which is enshrined not once but twice in federal statute. H.R. 7 does not further this principle. For these reasons, I urge my colleagues to oppose H.R. 7 when it comes before the House for a vote.
Committee on Education and Labor
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