As I flipped through the channels this morning I came across C-SPAN coverage of the debate on the Paycheck Fairness Act, a bill introduced 10 years ago that will update and modernize enforcement of the Equal Pay Act. With women still earning (on average) only 77 cents for every dollar earned by a man in a similar occupation, it is clear that the government needs to protect the wages of women, especially in a struggling economy where wages are often the first thing on the chopping block. This should be a no-brainer, right?
And then I did a little reading on the bill. Mark on your calendars the day I wrote this, and may it be saved in the archives of the Internet for all eternity: the Democrats have this all wrong.
As the law currently stands, once the employee proves wage discrimination, the company must mount an “any other factor” defense. That is, as long as the employer can prove that its wage determination is based on any factor other than gender in the case-at-bar, their defense stands. Usually this defense is a difference in qualifications, a practice which most businesses engage in, as those with more qualifications demand higher salaries to retain them in employment. Courts have found no fault with a difference in qualifications defense, and there are other factors upon which reasonable and acceptable defenses are based.
But the Paycheck Fairness Act would do away with the convention of an “any other factor” defense, instead requiring businesses to prove, through a “bona fide factor” defense, that the wage differential is based on a concrete factor, and that it is a legitimate business interest that that differential exist. Government is notorious for mismanaging businesses (Hello, Amtrak!), and entrusting them with determining for a private business what is in that business’ interest is dangerous and an intrusion of private business. Instead of simply having to prove that “any other factor” influenced the pay differential, the new law would require that a factor approved by the government as being a legitimate business interest influenced the pay differential. Do we want the government having this much say in the workings of private enterprise?
As much as I endorse government oversight of businesses, and as adamant a proponent I am of the rights of women, I think the Paycheck Fairness Act is misguided and an improper solution to the problems facing American working women.