On June 8, 2021, Senate Republicans filibustered House of Representatives bill No. 7, the Paycheck Fairness Act by a vote of 49-50. The purpose of the bill was purportedly to amend the Fair Labor Standards Act of 1938 to provide “more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes.”
In other words, the purpose of the bill was to address and remedy the so-called “gender wage gap” that is supposed to exist between what men earn and what women earn.
In addition to the obligatory section redefining “sex” discrimination to include: (1) pregnancy, childbirth, or a related medical condition; (2) sexual orientation (to include homosexuality, heterosexuality, and bisexuality) or gender identity (to include appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth), and (3) sex characteristics, including intersex traits, the bill also modifies an employer’s defense to paying men and women different wages. Referred to as the “Bona Fide Factor Defense,” an employer can claim that the difference in wages is due to:
- a seniority system;
- a merit system;
- a system which measures earnings by quantity or quality of production; or
- a differential based on any other factor other than sex:
(See Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1).)
H.R. 1 would strike “any other factor other than sex” and would insert “a bona fide factor other than sex, such as education, training, or experience.” Moreover, H.R. 7 would add at the end of Section 6(1) the following:
The bona fide factor defense described … shall apply only if the employer demonstrates that such factor (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; (iii) is consistent with business necessity; and (iv) accounts for the entire differential in compensation at issue. Such defense shall not apply where 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.
Notwithstanding that the House passed H.R. No. 7 in April 2021 (217-210), its proponents could not muster sufficient support for its passage in the Senate. Perhaps this is so because opponents read the article by Rebecca Bloom, “10 Reasons There is No Gender Wage Gap”, List Land, April 19, 2019. Go here: https://www.listland.com/10-reasons-there-is-no-gender-wage-gap/. Ms. Bloom writes that:
- In some cases, women make more than men.
- Women usually take on lower-paying jobs.
- Women usually take on less-risky jobs.
- Women don’t negotiate well.
Number 4 is interesting only because Section 4 of H.R. 7 requires the Secretary of Labor to establish a program to award contracts and grants for the purpose of –
“…training employers about the role that salary negotiation and other inconsistent wage setting practices can have on allowing bias to enter compensation.”
It is clear from Section 4 that someone has been reading Ms. Bloom. In addition, our very own Senator Burr commented that this bill was wholly unnecessary given other statutes currently on the books that prohibit discrimination on the basis of sex.
On the other hand, an estimated thirty (30) Republicans support the “Wage Equity Act”, a bill introduced by Rep. Elise Stefanik (R-N.Y.) in April 2021. Also styled as a measure to ensure women receive equal pay for equal work, the bill –
“…encourages employers to proactively evaluate their pay practices and eliminate pay disparities in their workplaces, while empowering employees to negotiate pay based on their qualifications and merit.”
The Wage Equity Act is H.R. 2491.
Given all the hand wringing, the gnashing of teeth, and the moaning and groaning by the Democrats when this bill was filibustered, the Senate Republicans are doing a very fine job holding together and thwarting the Democrat agenda!
I hope this is of value!