January 29, 2021
Rep. Rosa DeLauro (D-CT) and Sen. Patty Murray (D-WA) reintroduced the Paycheck Fairness Act (H.R. 7), which would strengthen the ability of employees to bring successful lawsuits alleging pay discrimination, significantly increase monetary remedies, and facilitate more class action lawsuits.
The bill has the support of every Democrat in Congress, say Rep. DeLauro and Sen. Murray. In March 2019 the bill passed the House by a vote of 242-187, and has the support of President Biden and Vice President Kamala Harris as the cornerstone of the administration’s efforts on gender equity.
The Act would substantially weaken employer defenses to gender pay lawsuits. The Act abandons the existing defense of justifying pay differentials on the basis of “any other factor other than sex,” and instead requires employers to show that such differentials are due to a “bona fide factor other than sex, such as education, training, or experience.” The Act would also prohibit retaliation against workers who discuss their pay as well as prohibit salary history inquiries. A full breakdown of the bill and what it means for employers can be found here.
HR Policy and other employers will seek an incentive for employers to address pay inequities voluntarily. Congress should consider legislation similar to that enacted in Massachusetts and other states that would provide employers liability protections against gender pay lawsuits, provided the employer has voluntarily conducted a self-audit of its pay practices and can demonstrate reasonable progress towards eliminating any unlawful gender-based wage differentials that the self-audit reveals.
Outlook: The Senate is likely to vote on the Paycheck Fairness Act sometime in early March. Given the Senate’s 60-vote filibuster, the bill faces the significant hurdle of gaining the support of at least 10 Republicans. In the previous Congress, Rep. Elise Stefanik (R-NY) introduced a more balanced gender pay equity bill, the Wage Equity Act (H.R. 1935), which included a variation on the Massachusetts self-audit safe harbor.