“Senate Majority Leader Harry Reid, D-Nev., scheduled a vote on the Paycheck Fairness Act when the Senate returns from its week-long recess,” the Washington Examiner reported earlier. “The U.S. Chamber of Commerce and other business groups that say it would encourage frivolous lawsuits and place burdensome regulations on employers, particularly small businesses, by legally compelling them to justify their wage scales.” The Act would effectively force many businesses to prove themselves innocent of pay discrimination, and would in some cases create a conclusive presumption of guilt, by narrowly limiting the availability of affirmative defenses (for employers that rely on sensible factors “other than sex” to set pay in ways that result in statistical disparities that have perfectly innocent explanations).
As noted earlier, the Paycheck Fairness Act would effectively mandate equal pay for unequal work, not equal pay for equal work as its supporters claim. “Male supermarket managers with college degrees couldn’t be paid more than female cashiers if the college degree for the manager wasn’t consistent with ‘business necessity,’” argued economist Diana Furchtgott-Roth in a July 23, 2010 column in the San Francisco Examiner. The bill would also radically increase damage awards for what it labels as “discrimination.”
As I noted on July 27,
Diana Furchtgott-Roth was right to criticize a bill that would require some people who do unequal work to be paid equal amounts. The perverse ‘Paycheck Fairness Act’ is indeed a bad idea. But her column understated the case by suggesting that ‘now,’ an employer found guilty of discrimination is only required to pay ‘back pay,’ not ‘punitive damages.’ Actually, employers already have to pay not only back pay but also damages up to $300,000 under Title VII of the Civil Rights Act. The so-called ‘Paycheck Fairness Act’ would eliminate the cap on punitive damages in gender-based pay discrimination cases, leaving the sky as the limit. Other provisions in this perverse bill could force employers to pay people who do nasty, dangerous, unpleasant jobs as little as those who do nice, pleasant ones, if the unpleasant jobs are performed mostly by members of one gender, and the pleasant ones mostly by the other gender. (Examiner, Pg. 20)
Supporters of the bill falsely claimed it would simply treat gender-based pay discrimination the same as other forms of pay discrimination. But that claim was false.