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Senate Committee Holds Hearing on Paycheck Fairness

On April 1, the Senate Health, Education, Labor, and Pensions Committee held a hearing, “Access to Justice: Ensuring Equal Pay with the Paycheck Fairness Act.”

Sen. Barbara Mikulski (D-MD) sponsored the Paycheck Fairness Act (S. 84), which would require employers to demonstrate that wage differentials between male and female employee are “not based upon or derived from a sex-based differential in compensation, [are] job-related with respect to the position in question, and [are] consistent with business necessity.”

Among other provisions, the measure would prohibit employer retaliation for employee complaints about wage discrimination, or where employees ask about, discuss, or disclose wages amongst each other. Employers who violate the law would be subject to compensatory and punitive damages.

The secretary of Labor would be authorized to make grants for negotiation skills training programs for girls and women.

Deborah Thompson Eisenberg, associate professor of Law, director, Center for Dispute Resolution, University of Maryland Francis King Carey School of Law, said, “The idea that differences in pay should bear some relation to the job and business should be an uncontroversial proposition. It is not only a matter of basic fairness (for all employees) and equal opportunity for women; it is simply smart business and good corporate governance for an employer to be more thoughtful about how its pay awards relate to the job and business.” Ms. Eisenberg also noted that “The act…facilitates the collection and analysis of pay data so we better understand the causes of pay discrimination.”

Speaking on behalf of the Chamber of Commerce, Camille Olson, partner, Seyfarth Shaw LLP, said, “The proposed changes to the EPA [Equal Pay Act] are also contrary to its most fundamental underpinnings; the requirement of equal pay for equal work balanced against the mandate that government not interfere with private companies’ valuation of a worker’s qualifications, the work performed, and more specifically, the setting of compensation.” She added, “[I]f the act becomes law, a plaintiff could erase an employer’s defense and leave it open to a jury award of unlimited punitive and compensatory damages in large mass actions on the basis of one employee’s complaint (without regard to the size of the employer).”

The following witnesses also testified:

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