Transcript: Q&A w/ Sen. Barbara Mikulski on the Paycheck Fairness Act

Partial transcript of Q&A w/ Sen. Barbara Mikulski (D-Maryland) on the Paycheck Fairness Act. The Senate Committee on Health, Education, Labor and Pensions hearing was held on April 1, 2014:

Sen. Barbara Mikulski (D-Maryland):
…There are those who say we really don’t need this bill. What we need is better enforcement of the existing legislation. There are those who say we’re not – who wants to discriminate against – that’s just not America, that’s just not fair. So they say we already have the Equal Pay Act, we already have Title VII, and we just need to enforce those laws better. What do you think about that from the perspective of a law professor who’s really studied this?

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
I spend a lot of time reviewing sort of the state of women’s wages in the modern economy, and what’s so alarming to me is that if you dig deeper beyond the aggregate pay gap statistic, it becomes even more alarming when you compare occupation to occupation. So women in every occupational category experience a wage gap.

Although women are becoming better educated, the gap widens as they get more education.

The myth that the aggregate wage gap is because more women work part-time isn’t true because the aggregate statistic only includes full-time year-round workers, not part-time workers.

And, in fact, part-time women earn more than their part-time counterparts because more men in the part-time sector tend to be younger and at the beginning of their careers.

And the statistics also show that if women work harder, the gap doesn’t go away.

Sen. Barbara Mikulski (D-Maryland):
What does that have to – I appreciate that data. What I asked – I didn’t ask if discrimination is real. I asked do we need this law or do we need to simply enforce the Equal Pay Act or Title VII and really fully fund the EEOC, which by the way was hit by sequester…they have a tremendous backlog in their case. So is the law necessary when we have these two laws in the books?

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
Well, I would agree with you that the EEOC is under-resourced and under-staffed. So that would be a big help. We do need the Paycheck Fairness Act, and what is so important about this law is that it deals with some of the deficiencies in the current remedy. It allows for a fuller remedy for all of the multiple harms of pay discrimination. Right now, for employers, it’s sort of the cost of doing business. If the wage disparity is discovered, then they pay the amount of the wage and maybe liquidated damages under the Equal Pay Act. So this will give a fuller remedy, which is very important.

So, my research has shown that the Equal Pay Act is not working very well, that most women who exercise their rights under this law are not able to get a remedy.

And as far as Title VII, Title VII is a very difficult law for pay discrimination because of its requirement that – of intent – of intentional discrimination.

And I should say that the myth that the Equal Pay Act does not involve intent is actually not true. It’s just that the intent is examined at the affirmative defense stage and the employer bears that burden because the employer has a monopoly on the information about how these wages were set.

Sen. Barbara Mikulski (D-Maryland):
Monopoly on the information.

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:

Sen. Barbara Mikulski (D-Maryland):
Thank you very much. I’d like to turn to Ms. Young. It sounds like you had a wonderful father and a pretty terrific mother for you to have such a verve and vitality and this sense of entrepreneurship. I mean, this is what makes America great – initiative and enterprises and so on.

We come from a family of small businesses too and my father started a small neighborhood grocery store. So I can appreciate fathers saying “Up and at them girl.”

But let’s talk about the real world. You had small businesses that I know have to operate close to the margin. One of the things we say, you know, Senators get real, understand the real world and the markets. So here’s my question, Ms. Young, is – you now, when you stepped in and as you said you took that bold action when your dad was running the show…was this negative in terms of the bottom line? In other words, what was the impact? Most people would say if they did what you did, your father would have walked into the woodshed or the equivalent and the second would be that it would really pull down the earnings. So what happened when you did that? You talked about the dynamics with your dad. Let’s talk about the dynamics of the business.

ReShonda Young, Operations Manager at Alpha Express, Inc. in Waterloo, Iowa:
Sure. When I did that, it truly did increase the morale of the women who work in there. The turnover for our women workers is next to none. It did not affect our bottom line. The companies are still profitable. There was no negative effect of me doing that.

Sen. Barbara Mikulski (D-Maryland):
That’s pretty significant. That’s a very interesting point.

Ms. Olson, I’d like to turn to you and your very content-rich presentation. But my question is the Chamber opposed to the bill totally or if the bill were amended and so on, the Chamber would continue – considers passing it? Do you have suggestions for amendments? Where are you? Are you flat no or are you ‘Let’s see what we can really do’?

Camille Olson, Partner at Seyfarth Shaw:
Thank you very much for your question, Sen. Mikulski…The answer to it is the Chamber is very much opposed to the three significant concerns that were raised today.

And I want to make a point, if I may, because I think this one is very important.

With respect to the issue of the revision to the factor other than sex, the Paycheck Fairness Act does not track the majority of circuits that have described the factor other than sex as the articulation of a legitimate business reason. That is a far different standard than the standard that’s being proposed in this act.

To your question, the answer is there’s no question that the Chamber will welcome the opportunity to work with yourself and Sen. Alexander with respect to the issues that we’re discussing today.

Sen. Barbara Mikulski (D-Maryland):
Very good…


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