The Senate HELP Committee this Thursday will hold a hearing on the Paycheck Fairness Act. While this bill’s title gives the casual observer the sense that it will prevent discrimination in pay, in reality it only promotes more litigation. In the process, the legislation creates tremendous uncertainty for employers who are struggling to create and retain jobs in these trying economic conditions.
This legislation will be a boon to the trial bar by allowing unlimited punitive damages and larger class action suits against employers under the Equal Pay Act. Because the Equal Pay Act is a strict-liability statute, plaintiffs’ attorneys don’t even need to demonstrate an employer’s intent to do harm to file a suit. If passed into law the Paycheck Fairness Act would force employers to second-guess every pay decision that they make.
In addition, the bill eliminates key employer affirmative defenses when presented with such claims. Just last year EEOC data shows that fewer than 5 percent of discrimination claims actually had legal grounds behind them. What does this mean? Even though a case may not have grounds, it forces employers to mount expensive defenses themselves against such claims. As The Washington Post when they rightfully pointed out that this legislation “risks tilting the scales too far against employers and would remove, rather than restore, a sense of balance.”
While illegal discrimination has no place in today’s workplaces, this legislation will not address those issues. Discrimination on the basis of gender is already illegal. The legislation does not make discrimination any more against the law, it simply opens up the judicial process to more civil lawsuits based on equal pay claims. Who benefits? Not the worker, the lawyers
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