Transcript: Q&A w/ Sen. Elizabeth Warren on the Paycheck Fairness Act

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

Sen. Elizabeth Warren (D-Massachusetts):
…You know, I can’t believe we’re debating equal pay for equal work in 2014. I just really can’t believe this.

Women still only earn 77 cents for every $1 a man earns, and some women can be fired for asking the guy across the hall how much money he makes.

So what I’d like to ask about today is a little bit more about the defense that employers have under the current law and what’s proposed under Paycheck Fairness.

So, if I could, could I start with you, Professor Eisenberg, and could you just talk a little bit more about the current law and how some employers are using the factor other than sex defense under today’s law?

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
Certainly. That’s a great question. The current law allows – I just wanted you to keep in mind that the first threshold that employees and the plaintiffs need to prove is that the jobs in question are equal in terms of skill, responsibility, and effort. And then the burden shifts to the employer to disprove discriminatory intent by showing the actual reasons for the pay disparity.

So one of those – the catch-all factor other than sex as currently interpreted by a majority of courts is still in a majority of courts supposed to be job and business related. So this proposal in the Paycheck Fairness Act is codifying that majority view.

Sen. Elizabeth Warren (D-Massachusetts):
So in the majority of courts, there’s no change at all in the law in that fundamental sense other than a woman can now ask and that she will be protected and can’t be fired for asking what the guys make. But…there’ll be some change in some courts.

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
There’ll be some – two federal circuits – Seventh Circuit and the Eighth Circuit Court of Appeals – have interpreted the factor other than sex to really mean anything under the sun, even if it doesn’t relate to the qualifications of the two employees in that job or to a business related reason.

Let me give you two examples. One common factor other than sex that is accepted by some courts but rejected by others is the happenstance of prior salaries. So if a woman, man is coming to the exact same job, and the woman is coming from a prior employer where her salary happened to be lower but she’s equally as qualified, and a man’s coming from a different job where his salary happened to be higher, they will be paid based on their prior salaries rather than their comparable qualifications and the fact that they’re doing comparable work.

Sen. Elizabeth Warren (D-Massachusetts):
So, if she had been discriminated against in the past, that can now be a defense for discriminating against her in the present and in the future.

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
Absolutely. It perpetuates the very discrimination that the Equal Pay Act was supposed to address.

And the other thing that I’ve seen in some cases – and again, there’s a split among courts – is the so-called market forces argument. And in some cases, if an employer is able to show actual market compensation data on which the employer relied, then that is accepted by courts.

Some courts, however, have accepted vague and illusory defenses that this is required by the market, and upon closer examination of actual market data, the men are being paid above market rates and the women are being paid below market rates. And I’ve had that in cases that I’ve litigated.

The other thing as far as the market forces defense is that sometimes it’s just a sort of subjective value, judgment – a subjective hunch on the part of the supervisor. It’s not really any sort of objective market data that they’re referring to.

Sen. Elizabeth Warren (D-Massachusetts):
So, just so I’m sure I understand this. Kind of the basic things that we’ve talked about – about differences on how employees get paid, like seniority, merit, the quality of your work, and different job descriptions where you have perhaps more flexible hours in your job than someone else does. Would those under Paycheck Fairness be legitimate grounds for paying someone differently?

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
Absolutely. And even in the majority of circuits that have already adopted the job-related and business-related standard that the Paycheck Fairness Act codifies, those defenses are allowed and they’ve been accepted. So this does not change that at all.

Sen. Elizabeth Warren (D-Massachusetts):
Thank you very much. Now, I just want to remember that women earn less than men in nearly every occupation, that today in 99.6% of all occupations men are earning more than women. That’s not an accident. That’s discrimination. And women are tired of it, and what this bill does is gives us a chance to fight back…

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One Comment on “Transcript: Q&A w/ Sen. Elizabeth Warren on the Paycheck Fairness Act

  1. Pingback: Spotlight: Paycheck Fairness Act | What The Folly?!

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