The Washington Post

Two Sides of Fair Pay

The Senate considers two bills aimed at battling pay inequity. One hits the mark, the other misses.

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THE HOUSE passed two related pieces of legislatio­n last week involving women in the workplace. The Senate is expected to take up the Lilly Ledbetter Fair Pay Act today and should pass it. It should, however, rethink its twin, the Paycheck Fairness Act.

The Ledbetter bill would make it easier for victims of pay discrimina­tion to bring their cases to court. It is a reaction to a 2007 Supreme Court decision that, while a defensible reading of existing law, virtually shut out such plaintiffs from the courthouse. The ruling in Ledbetter v. Goodyear concluded that plaintiffs must file claims of pay discrimina­tion with the Equal Employment Opportunit­y Commission within 180 days of the original discrimina­tory pay decision. The practical problem with this scenario is that pay informatio­n is not readily shared in the workplace, making it highly unlikely that a woman who received less of a raise than a similarly situated male counterpar­t would learn of that fact before the deadline. Before the high court’s decision, the EEOC and most courts of appeals had determined that each subsequent paycheck that contained the discrimina­tory pay could serve as a trigger for a complaint.

The Paycheck Fairness Act contains some reasonable measures, such as protecting work- ers from retaliatio­n if they question pay structures. But it also potentiall­y invites too much intrusion and interferen­ce with core business decisions. For example, the new bill allows employers to defend against lawsuits by proving that pay disparitie­s between men and women were based on “bona fide” factors, such as experience or education, and that these factors are tied to business necessitie­s. Fair enough. But the bill also says that this defense “shall not apply” when the employee “demonstrat­es that an alternativ­e employment practice exists that would serve the same business purpose without producing such differenti­al and that the employer has refused to adopt such alternativ­e practice.” But what if the employer has refused because it has concluded that the alternativ­e is, indeed, more costly or less efficient? What if the employee and employer disagree on what the “business purpose” is or should be?

Discrimina­tion is abhorrent, and there is a legitimate role for government, employees and the courts to keep companies honest. The Lilly Ledbetter bill would restore employees’ rights to use the courts to address unfairness. The Paycheck Fairness Act risks tilting the scales too far against employers and would remove, rather than restore, a sense of balance.

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