Transcript: Professor Deborah Thompson Eisenberg’s testimony on the Paycheck Fairness Act – April 1, 2014

Partial transcript of the testimony of Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law, on the Paycheck Fairness Act. The Senate Committee on Health, Education, Labor and Pensions hearing was held on April 1, 2014:

Thank you, Chairwoman Mikulski and members of the committee. I am honored to testify in support of the Paycheck Fairness Act.

As a scholar, I’ve studied the current failure of federal law to provide an effective remedy for many women who’ve experienced pay discrimination.

And as an employment lawyer and now mediator, I’ve witnessed the profound impact that pay discrimination can have.

My written testimony explains why gender pay discrimination is still a serious problem, how it happens in the modern economy, and why the Paycheck Fairness Act is critical legislation that should be passed.

I want to highlight three points.

First, the Paycheck Fairness Act recognizes in the words of Louis Brandeis that “sunshine is the best disinfectant.”

As we know from Lily Ledbetter’s story, most unlawful pay discrimination is hidden from sight. This can allow unlawful pay disparities to snowball over time, undetected and undeterred.

Many women do not know that drastic pay disparities exist between them and their male cohorts until they find out by accident.

Many employees are afraid to compare notes or ask about the pay of their counterparts out of fear of getting fired.

One study found that half of all American workers are either strictly forbidden or strongly discouraged from discussing their pay with co-workers.

This is a problem because studies show that if women are armed with better information about appropriate pay rates, gender pay disparities can be reduced or eliminated altogether.

The act lets in just a little bit of sunshine while balancing confidentiality concerns.

It prohibits retaliation against employees who simply ask about or discuss their wages in the workplace.

It also facilitates better data collection and study about pay rates to better understand the causes of pay discrimination and to better assist employers with best practices.

This is a balanced, proactive approach. The goal is to motivate employers to correct unlawful pay disparities before they turn into fodder for litigation.

Second, the Paycheck Fairness Act will make the Equal Pay Act a more effective remedy against those who, 50 years later, still flout the law.

The act amends the “any factor other than sex defense” in the Equal Pay Act, which a minority of federal courts have interpreted to be gaping loophole – an “anything under the sun” defense – which has swallowed the equal pay for equal work rule.

The act fixes that problem by adding the common sense fairness notion that a wage disparity between two employees who perform the same jobs should be based on a factor related to the business, the job, and the employees in those jobs. That standard is not only fair, it’s smart business. This standard is already working well in a majority of federal circuits and has been adopted by the EEOC.

To be clear, the act does not get the government involved in wage setting at all. The act does not dictate to employers which factors should be used in setting pay. Employers have the sole discretion to set pay based on anything that matters for their business and those jobs – a limitless array of factors, such as skills, qualification, performance, seniority, extra responsibility, and the list goes on.

Third, the act puts gender pay discrimination on equal footing with remedies for racial and national origin pay discrimination under Section 1981 by permitting compensatory damages in appropriate cases and punitive damages for especially egregious and malicious violations.

It also allows women who are affected by a widespread common discriminatory pay practice to join together in one representative action.

These changes will promote voluntary compliance by employers and provide more effective remedy against those that break the law.

Opponents who suggest that strengthening the Equal Pay Act will somehow open the floodgate to frivolous claims and runaway jury verdicts do not understand the realities of equal pay litigation. These cases are extremely hard to win.

As my research explains, employees are less likely to prevail on equal pay claims today than in any other time in the act’s history.

Very few equal pay claims are filed in federal court and those that are filed are typically dismissed on summary judgment and never make it to a jury, often for reasons that have nothing to do with the merits of the pay disparity itself.

Rest assured the women of America do not want to sue their employers; they simply want to be paid fairly.

The Paycheck Fairness Act will help ensure that the promise of equal pay for equal work is not an empty one.

Thank you and I look forward to your questions.

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