- Democrats and equal pay advocates are attempting to build momentum behind the latest iteration of the Paycheck Fairness Act, an effort that was the subject of a House Education and Labor Committee hearing Thursday.
- The act, which has been introduced in Congress at various points since 1997, would amend the Fair Labor Standards Act (including the Equal Pay Act) and the Civil Rights Act of 1964 to clarify employers' bona fide factor defense, institute mandatory pay data collection by the U.S. Equal Employment Opportunity Commission (EEOC) and make it illegal for employers to ask about or rely on an employee's salary history for the purpose of setting wages, among other provisions. Rep. Rosa DeLauro, D-Conn., and Sen. Patty Murray, D-Wash., introduced identical versions of the act in their respective chambers Jan. 30.
- Witnesses at the hearing included former EEOC Chair Jenny Yang, who said the bill would close "judicially-created loopholes" and create "clear and consistent anti-retaliation protections for discussion of pay."
Though the push among supporters has been renewed given the entrance of a Democratic-majority in the House, HR departments are no stranger to pay equity. The measures introduced in the latest version of the Paycheck Fairness Act reflect various non-Congressional efforts, including those at the federal, state and local levels, that have had varying degrees of success in recent years.
Only recently, for example, did an EEOC effort to mandate the collection of pay data for some employers via EEO-1 reporting fail. This came courtesy of the Trump administration, which blocked the requirements. But that hasn't stopped other governments from attempting to address the pay equity problem via other measures, like salary history bans, which various states and cities have enacted.
The existence of a pay gap in the U.S. is a heated topic of debate, despite a wide body of research confirming the statistical presence of gaps. Critics say the Equal Pay Act, passed in 1963, has not produced the intended impact on the workplace. Yang said part of the problem is that courts have interpreted the act's provisions in an "unjustifiable" manner, while "a culture of secrecy" around pay has discouraged many from speaking about inequalities.
"Even when employees learn — often by chance — of a pay disparity, it can take a tremendous toll to have to come forward, face a real likelihood of retaliation, find and pay for a lawyer, and then endure years of litigation," Yang said. "This burden on victims, combined with a lack of sufficient remedies, leads to significant underreporting of the problem."
Employers can still opt to examine pay data regardless of changes to EEO-1s, and may want to do so for a number of reasons, experts say. If gaps are found, they can work to address the underlying causes or make immediate changes to employees' salaries where feasible, though employment law experts are divided as to whether this is the best course of action.