ATR, OCC Urges Congress To Reject The Misleadingly-Named “Paycheck Fairness Act”

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Posted by Tom Hebert on Wednesday, April 14th, 2021, 10:15 AM PERMALINK

The House of Representatives will soon vote on H.R. 7, the misleadingly-named “Paycheck Fairness Act,” legislation introduced by Rep. Rosa DeLauro (D-Conn.). If implemented, H.R. 7 would enact no new pay discrimination protections. Instead, the bill would give greedy trial lawyers unprecedented opportunity to target employers with frivolous lawsuits. 

Americans for Tax Reform and the Open Competition Center oppose the Paycheck Fairness Act and urge all members of Congress to vote NO. 

While the left claims H.R. 7 will close the “gender pay gap,” this legislation is not about equal pay for equal work. The Equal Pay Act of 1963 explicitly outlawed gender-based pay discrimination. And while men make slightly more on average than women, accurate estimates show that women make 95 to 98 cents per every dollar a man makes, a far narrower difference than the 22-cent pay gap the left constantly cites. 

Under the Equal Pay Act, employees must provide evidence that their bosses are engaging in pay discrimination based on sex. Once they have provided the evidence, the burden of proof shifts to the employer to prove that the wage difference is based on “any factor other than sex.” 

The Paycheck Fairness Act abolishes this decades-old standard and replaces it with a “bona fide factor other than sex” standard. This would require businesses to show that pay discrepancies between workers purportedly doing the same job are “consistent with business necessity.” 

While these may seem like mild semantic differences, this change would erode crucial flexibility in the workplace. Currently, employers can negotiate employment and compensation arrangements with male and female workers that prefer more flexibility to a larger paycheck. Under the new “bona fide factor” standard, employers would likely be pressured to enact standardized compensation packages for employees to mitigate risk of litigation. 

H.R. 7 would also lead to a dramatic decrease, or outright elimination, of performance-based pay in the American workplace. Under the new standard, employers could become liable for rewarding male and female employees with different bonuses based on performance, as a female worker could allege in court that these bonuses were not a “business necessity.” This risk would encourage businesses to adopt a uniform pay scale, reducing crucial incentives for employees to excel and suppressing pay across the board. 

Additionally, H.R. 7 would automatically make workers part of class-action lawsuits unless they opt-out, encouraging greedy trial lawyers to reap a windfall by filing class-action suits against businesses. H.R. 7 also effectively removes the $300,000 cap for punitive damages for employment discrimination cases, putting employers at even greater risk of litigation. 

Ultimately, the so-called Paycheck Fairness Act will only harm workers and expose employers to frivolous litigation. All members of Congress should vote NO. 

Photo Credit: Dan Gaken

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