Transcript: Q&A w/ Sen. Tammy Baldwin on the Paycheck Fairness Act

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

Sen. Tammy Baldwin (D-Wisconsin):
…When I graduated from college, I had the opportunity to work on a study of the issues of comparable worth – somewhat distinguishable from equal pay for equal work – where you look at is there comparable pay for comparable work. And why would one undertake such an inquiry? Well, we don’t always have pay and equities that exist from people working side by side.

I’ve often walked into a private sector setting where, say, I’ve taken a tour and one part of the facility has a female dominated workforce doing similar things – maybe 80% or 90% female – and then there might be another part of the job where it’s 50-50 in the workforce, and then you might see another part of the operation where it’s predominately males engaged.

The state of Wisconsin in the mid-80s decided to sort of ask the question in state government service how do so-called pink collar jobs compare to others, and started doing…a valuation of the range that certain occupations ought to be pay based on not the future incumbent in that position but things like degree of academic preparation required for the job and the skill set required, how many people you supervised if any at all, and the consequence of making a mistake or an error – you know, did somebody die when you make a mistake, did somebody get harmed, did somebody deny justice, and what are the consequences of certain mistakes.

And what they’ve found in studying female dominated positions versus male dominated positions is that there was an unexplained pay gap. There was just – you compare all of that data collected and there was just this element that wasn’t explained by anything except the gender of the predominant incumbents in these positions. And it’s proven a really difficult issue to rid our society of that.

I mean, I can’t remember the exact quote but I think Margaret Mead was talking about that half a century in a very different place in the world – how we value work done by men versus by women.

So I’m very pleased, Madam Chairwoman, that we’re pursuing this, that we will be fighting to pass this legislation.

And I guess I do have a question about the warning we hear often from those who oppose this legislation that it may open the doors for a lot of litigation. I think that my own state provides a bit of an example, and Professor Eisenberg I don’t know if you have state by state reviews, et cetera. But we had an equal pay law – more like a paycheck protection act – and it was recently repealed. Regrettably, in the state, our governor led a repeal effort and it was repealed in 2012. I thought it was a real step backward. But the repeal in part the debate surrounded the potential flood of litigation. It would have been in effect for some years, and there was just no record to suggest that.

And so, Professor Eisenberg, if you could respond to that set of arguments.

Professor Deborah Thompson Eisenberg, University of Maryland Francis King Carey School of Law:
That’s a great question. I’m proud to say my home state of Maryland has an equal pay act, and I should say there’s no catch-all factor other than sex defense. It’s very strict, actually. Seniority, merit, abilities, skill – an enumerated list. And [it] also has a class action procedural availability. And very few cases are ever filed even under the Maryland Equal Pay Act.

You know, I think that something to keep in mind is that it is very difficult to come forward and sue an employer. It can be career suicide. It takes an enormous psychological toll.

And so what this act really does is give women some more leverage about their rights so that hopefully they can take that to the employer and advocate for themselves and nip it in the bud.

I’ve also done a study of every Equal Pay Act case in federal district courts from 2000 to 2011 that made it to a summary judgment decision in the court. And I found that there were only 50 cases – about 50 cases per year on average for each of those 11 years. That’s about an average of one per state.

So there already is not a lot of Equal Pay Act litigation out there. I don’t see that this is going to open the floodgates. Perhaps more cases will make it past summary judgment. There is an enormous problem right now in the federal courts with summary judgment and the real impact that summary judgment has – that sort of stopping cases at the starting gate – they don’t make it to jury. About half of Equal Pay Act cases are dismissed based on the prima facie standard – the equal work standard – and of those cases that remain, the remaining half have been dismissed on summary judgment based on the factor other than sex defense.

So only about one-third are sort of sneaking past and actually making it to a merits decision in front of the jury.


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