Good Riddance to the Paycheck Fairness Act

The Senate voted down the Paycheck Fairness Act yesterday, a bill that was ostensibly aimed at closing the fabled 77-cent-on-the-dollar pay gap between men and women in the workplace (and in reality aimed at helping Democrats increase the gender vote gap between them and Republicans next November). The bill failed mainly along party lines:

The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, short of the 60 votes necessary. Senate Republicans voted en masse against the measure, believing that it could adversely affect businesses if employees attempt to file pay-related lawsuits.

The Paycheck Fairness Act is a seriously flawed bill, but it’s not completely without merit. A provision that would prevent employers from retaliating against workers who inquired about potential gender-based wage discrepancies sounds reasonable. And provisions that support more government research into the “gender wage gap” and supply job interview training for women aren’t necessarily bad — just ineffective and probably a waste of government money and time.

But other parts of the bill — particularly the burden of proof issue — are downright dangerous, as the Heritage Foundation explains:

Under the current Equal Pay Act, once employees have provided prima facie evidence of sex discrimination, the burden of proof shifts to the employer to show that the difference in wages results from “any factor other than sex.”

The PFA eliminates the “any factor other than sex” defense and replaces it with a “bona fide factor other than sex” defense. Employers can use this “bona fide factor” defense only if they demonstrate that “business necessity” demands it.

The legislation is fairly vague on what these “bona fide factors” might include, but lists education, training or experience. Of course, in real life there are other less tangible factors that could play a role in determining salary, including leverage during negotiations, innate talent or intelligence, competition from other employers, or a potential employee’s previous salary. The employer might find himself in legal trouble if he based the decision on one of these more subjective factors.

And that’s not the worst part — as Heritage explains further, the act would also require employers to provide training and education for female employees so that they can be on par with any male employees with higher salaries:

The PFA further provides:

Such [bona fide factor] defense shall not apply where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.

Consequently, the PFA would make virtually any pay difference between a male and female worker grounds for a lawsuit. An employee could sue if she could find an alternative pay practice that arguably serves the same business purpose. This would lead to the government and the courts dictating business practices to employers.

Consider a company with two employees in a division: a man with 10 years experience and a newly hired woman. If the company paid the man greater wages for his greater experience, the woman could insist that the employer provide her with intensive training to make up the experience gap and then pay her identical wages. And if the company refused? The woman in question could sue.

At best, the gender wage gap has been overstated. And to the extent that it does exist, it seems to have little to do with misogynistic employers trying to keep women down. If that were the case, the female Senate Democrats who have been championing the Paycheck Fairness Act wouldn’t have gender wage gaps in their own offices.

Actually, it seems like the proponents of the Paycheck Fairness Act are the only ones who are nostalgic for workplace gender discrimination. While advocating for the act, President Obama has repeatedly claimed women make 77 cents for every dollar men make. That number is highly skewed and misleading — even Ezra Klein’s liberal WonkBlog crunched its own numbers and came up with 91-cents-on-the-dollar, when controlling for life choices. Is that nine-cent gap due to actual gender discrimination? It’s nearly impossible to say for certain, because there are a number of other factors that may also need to be taken into account. But the fact that advocates for the Paycheck Fairness Act have seized onto the scariest, least accurate number seems to be an intentional attempt to demoralize and disempower vulnerable women, convincing them they have less control over their lives and careers than they actually do.

This won’t be the last we hear about the Paycheck Fairness Act. Obama will likely keep it in his reelection pitch. But its failure in the Senate yesterday was a good thing for employers and for women in the workplace.