Report from Governmental Affairs

Payday Equality


Roberta Liebenberg
Photo by Amanda Stevenson

“Congress sought to eliminate pay discrimination against women when it enacted the Equal Pay Act nearly 50 years ago, but unfortunately the significant pay disparity between men and women still exists today,” says Roberta D. Liebenberg, who chairs the ABA Commission on Women in the Profession. “Fundamental fairness for tens of millions of working women compels equal pay for equal work, and pay equity for women is long overdue.” Liebenberg is a senior partner at Fine, Kaplan and Black in Philadelphia.

The Paycheck Fairness Act would bolster a number of provisions in the 1963 law, which itself amended the Fair Labor Standards Act of 1938 by creating more effective remedies for people subject to wage-based discrimination and mandating that the federal government be more assertive in seeking to eliminate wage disparities. The House of Representatives passed its version of the Paycheck Fairness Act (H.R. 12) in 2009, but the Senate bill (S. 182) has been stalled.

During a Senate hearing in March, Rep. Rosa L. DeLauro, D-Conn., the lead sponsor of the House bill, emphasized that paycheck fairness has become a family issue now that women make up half the workforce, and two-thirds of women are either the sole breadwinner or co-breadwinner in their families. At the same hearing, Sen. Tom Harkin, D-Iowa, who chairs the Senate Committee on Health, Education, Labor and Pensions, said, “The evidence shows that actual gender discrimination accounts for much of the disparity between men’s and women’s pay, and our laws have not done enough to prevent this discrimination.”

LOOKING TO ADD SOME MUSCLE

The ABA’s support for bolstering the Equal Pay Act is based on a recommendation adopted by the policymaking House of Delegates (PDF) in February. The commission on women was the lead sponsor.

In correspondence to Harkin, ABA Governmental Affairs Director Thomas M. Susman said the ABA strongly supports amending the Equal Pay Act to expand remedies available to prevailing plaintiffs to include compensatory and punitive damages —a step that would put victims of gender-based wage discrimination on an equal footing with those who sue for discrimination based on race or national origin.

Susman also pointed out that the current Equal Pay Act—enacted prior to the adoption of Rule 23 of the Federal Rules of Civil Procedure—requires plaintiffs to take affirmative steps to opt in to class action lawsuits alleging gender-based pay discrimination. Other civil rights claims governed by Rule 23 provide that individuals are automatically considered part of the class unless they choose to opt out. The legislation would afford plaintiffs in actions under the Equal Pay Act the choice of proceeding with an opt-out class action.

The ABA also supports amendments to the act that would:

• Prohibit employers from retaliating against employees for sharing wage information with each other.

• Permit employers to assert affirmative defenses in wage actions only when the pay differential between women and men is related to factors other than gender.

• Allow wage comparisons between women and men in facilities within a clearly defined geographical area, rather than just one work facility.

• Allow federal agencies to collect more wage data from employers.

“The Paycheck Fairness Act proposes much-needed modifications and improvements to the EPA,” Susman wrote, “so that women will finally have the legal tools to effectively assert their right to receive equal pay for equal work.”

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