The Higher Ed Workplace Blog

Paycheck Fairness Act Passed Out of Committee

On February 26, the House Education and Labor Committee held a markup on the Paycheck Fairness Act (PFA) (HR 7). The bill, which was first introduced in Congress in 1997 and most recently on January 30, aims to close the gender pay gap by amending the Equal Pay Act. Specifically, the PFA would ban inquiries into job candidates’ wage history, limit defenses against claims of unequal pay, allow employees to inquire about and discuss wages without retaliation, enhance penalties for Equal Pay Act violations, and direct pay data collection and analyses. The legislation was passed out of committee in a 27-19 vote along partisan lines.

At a hearing the week before, Democrats called for passage of the bill “in order to eliminate the loopholes that exist under current law as well as provide additional, more powerful enforcement against wage discrimination,” and Republicans argued that “the PFA was the wrong approach to ensure equal pay, because it offers no new protections for workers, imposes a one-size-fits-all mandate, limits communication between employers and employees, and is not designed to help female workers.”

Some witnesses, including Jenny Yang, former chair of the Equal Employment Opportunity Commission, offered testimony in support of the legislation, arguing for instance that the PFA clarifies how pay disparities can qualify as job related, believing courts have previously allowed for pay discrepancies that were not job related. Another witness, Camille Olson, an attorney with Seyfarth Shaw, offered testimony in opposition to the PFA, which she explained “raises the burden of proof for employers to prove pay disparities are related to factors ‘other than sex’ to an impossibly high standard” and argued that changes to existing law would better accomplish the intended outcome of the PFA.

CUPA-HR submitted a letter for the record reiterating the association’s support of “narrowly tailored legislative and regulatory proposals that are designed to prevent and remedy documented discrimination in the workplace.” We urged the committee to reject the PFA, however, as it will increase burdens and lead to unintended consequences for institutions of higher education. Specifically, we expressed concern with the bill’s provision imposing liability for pay practices that an employer has shown are justified by business necessity if a plaintiff, their lawyers and judges conclude an “alternative employment practice exists that would serve the same business purpose without producing such differential,” as this would impose unprecedented government control over how employees are paid and create widespread uncertainty about which pay practices are lawful, leading to confusion and litigation.

While we expect this legislation to be passed by the House, it is unlikely to move through the Republican-controlled Senate.