The Mythical ‘Pay Equity’ Crisis
Democrats won’t tell you, but equal pay for women is already the law.
By GERALD SKONING
Oct. 13, 2014 7:13 p.m. ET
As the 2014 midterm campaigns come down the home stretch, Democrats are pounding on the issue of “equal pay for women.” In his speech at Northwestern University on Oct. 2, for example, Mr. Obama said that we must “make sure a woman is paid equal to a man.” Democrats are “for equal pay for equal work,” Hillary Clinton said at a recent rally in Iowa, “and our opponents are not.” North Carolina Sen. Kay Hagan’s campaign has blasted Thom Tillis, her GOP opponent, for opposing “federal equal pay legislation.”
As a campaign issue, demands for pay equity are beside the point. Equal pay for women has been the law of the land for more than a half-century.
Democrats say we need another new federal statute to protect women because the existing panoply of federal and state laws prohibiting pay discrimination on the basis of gender are insufficient. Specifically, they have continued to press for passage of the Paycheck Fairness Act, which according to its congressional sponsors would “provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex.” In reality, this bill would expand litigation opportunities for class-action lawyers seeking millions of dollars from companies without ever having to prove that the companies intentionally discriminated against women.
The Paycheck Fairness Act instead is meant to address the fact that “on average, full-time working women earn just 77 cents for every dollar a man earns,” as the Obama White House explains on its website. This is not a claim that any woman earns less than any man for the same work. Pay “disparities” between men and women generally reflect other factors such as interrupting a career to raise children, the types of jobs men and women on average choose, the type of education they have (sociology vs. engineering), etc.
Since 1963 it has been unlawful under the federal Equal Pay Act for an employer to pay a female employee less than a male employee for equal work. Sex discrimination in wages is also prohibited by Title VII of the Civil Rights Act of 1964. For employees of federal contractors and subcontractors, Executive Order 11,246 prohibits gender-based pay discrimination.
Finally, 46 states have antidiscrimination statutes mandating equal pay for equal work. While the enforcement schemes of these laws vary from state to state, the remedies those statutes provide are comparable to those available under federal laws.
Today, the Equal Pay Act and Title VII provide a woman who prevails on her wage discrimination claim a virtual smorgasbord of effective remedies. They include, but aren’t limited to, back pay, attorneys’ fees, injunctive relief, prejudgment interest, $300,000 in punitive and compensatory damages, an additional $10,000 in penalties, and a prison sentence of up to six months for an employer who willfully violates the law.
A government contractor or subcontractor—as some 270,000 American companies are—may face serious penalties for gender-based wage discrimination, including termination or suspension of any existing contract, and take remedial action including elimination of illegal pay practices, seniority relief, and monetary and equitable relief to identified class members.
Campaign rhetoric and simplistic election-year sound-bites can and do mislead voters into thinking that gender-based wage discrimination is a national crisis and that women have no recourse whatsoever in the face of invidious pay discrimination by their heartless employers. Nothing could be further from the truth. Several layers of tough federal and state laws protect women from pay discrimination.
Moreover, powerful federal and state agencies like the Equal Employment Opportunity Commission, the Labor Department and its Office of Federal Contract Compliance Programs, and 46 state agencies are charged with overall enforcement of the respective federal and state laws and their prohibitions of sex-based wage discrimination. In short, serious enforcement muscle is available to women who are discriminated against on payday.
So our lawmakers should ask themselves, do we really need another federal statute protecting women’s rights to equal pay? The laws already exist in spades. Those laws contain tough sanctions, generous remedies for violations, and establish powerful government enforcement agencies to pursue offenders.
Vigorous enforcement of the arsenal of tough federal and state laws prohibiting sex discrimination in wages will ensure continued progress toward the important national goal of true equal opportunity, as well as pay equity, for all. The Democrats’ populist campaign mantra about “pay equity” is empty rhetoric.
Mr. Skoning is a labor and employment lawyer in Chicago.
As the 2014 midterm campaigns come down the home stretch, Democrats are pounding on the issue of “equal pay for women.” In his speech at Northwestern University on Oct. 2, for example, Mr. Obama said that we must “make sure a woman is paid equal to a man.” Democrats are “for equal pay for equal work,” Hillary Clinton said at a recent rally in Iowa, “and our opponents are not.” North Carolina Sen. Kay Hagan’s campaign has blasted Thom Tillis, her GOP opponent, for opposing “federal equal pay legislation.”
As a campaign issue, demands for pay equity are beside the point. Equal pay for women has been the law of the land for more than a half-century.
Democrats say we need another new federal statute to protect women because the existing panoply of federal and state laws prohibiting pay discrimination on the basis of gender are insufficient. Specifically, they have continued to press for passage of the Paycheck Fairness Act, which according to its congressional sponsors would “provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex.” In reality, this bill would expand litigation opportunities for class-action lawyers seeking millions of dollars from companies without ever having to prove that the companies intentionally discriminated against women.
The Paycheck Fairness Act instead is meant to address the fact that “on average, full-time working women earn just 77 cents for every dollar a man earns,” as the Obama White House explains on its website. This is not a claim that any woman earns less than any man for the same work. Pay “disparities” between men and women generally reflect other factors such as interrupting a career to raise children, the types of jobs men and women on average choose, the type of education they have (sociology vs. engineering), etc.
Since 1963 it has been unlawful under the federal Equal Pay Act for an employer to pay a female employee less than a male employee for equal work. Sex discrimination in wages is also prohibited by Title VII of the Civil Rights Act of 1964. For employees of federal contractors and subcontractors, Executive Order 11,246 prohibits gender-based pay discrimination.
Finally, 46 states have antidiscrimination statutes mandating equal pay for equal work. While the enforcement schemes of these laws vary from state to state, the remedies those statutes provide are comparable to those available under federal laws.
Today, the Equal Pay Act and Title VII provide a woman who prevails on her wage discrimination claim a virtual smorgasbord of effective remedies. They include, but aren’t limited to, back pay, attorneys’ fees, injunctive relief, prejudgment interest, $300,000 in punitive and compensatory damages, an additional $10,000 in penalties, and a prison sentence of up to six months for an employer who willfully violates the law.
A government contractor or subcontractor—as some 270,000 American companies are—may face serious penalties for gender-based wage discrimination, including termination or suspension of any existing contract, and take remedial action including elimination of illegal pay practices, seniority relief, and monetary and equitable relief to identified class members.
Campaign rhetoric and simplistic election-year sound-bites can and do mislead voters into thinking that gender-based wage discrimination is a national crisis and that women have no recourse whatsoever in the face of invidious pay discrimination by their heartless employers. Nothing could be further from the truth. Several layers of tough federal and state laws protect women from pay discrimination.
Moreover, powerful federal and state agencies like the Equal Employment Opportunity Commission, the Labor Department and its Office of Federal Contract Compliance Programs, and 46 state agencies are charged with overall enforcement of the respective federal and state laws and their prohibitions of sex-based wage discrimination. In short, serious enforcement muscle is available to women who are discriminated against on payday.
So our lawmakers should ask themselves, do we really need another federal statute protecting women’s rights to equal pay? The laws already exist in spades. Those laws contain tough sanctions, generous remedies for violations, and establish powerful government enforcement agencies to pursue offenders.
Vigorous enforcement of the arsenal of tough federal and state laws prohibiting sex discrimination in wages will ensure continued progress toward the important national goal of true equal opportunity, as well as pay equity, for all. The Democrats’ populist campaign mantra about “pay equity” is empty rhetoric.
Mr. Skoning is a labor and employment lawyer in Chicago.
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