Paycheck Fairness?

November 15, 2010

Chicago Tribune

Equal pay for equal work stands as a cornerstone of the American workplace, and we support the principle wholeheartedly. But Congress is moving toward a fix that would be grossly intrusive on decision-making by private businesses.

At least one group would get a fatter paycheck from the Paycheck Fairness Act: trial lawyers.

The proposed law says that in cases where a pay disparity between men and women is challenged in court, an employer would have to prove there is some reason for the gap other than discrimination. The employer would also have to prove that the gap serves a necessary business purpose. And even then, the employer could be in trouble if a court determines that an "alternative employment practice" would serve the same purpose without skewing the salaries.

Those judgment calls go by another name: management decisions. The legislation would open businesses to wide second-guessing of decisions they made to hire and promote the most effective work force in a competitive environment. It would leave businesses with one eye on the competition and one eye on what a judge might decide in hindsight is a preferable "alternative employment practice."

Uncle Sam to the nation's employers: We'll tell you how to run your business.

Imagine a company that pays more to workers with greater experience. If women haven't been on the job as long as men, they would likely earn less. The burden would be on the employer to prove that experience not only yielded a measurably better quantity and quality of work, but also that it was the best yardstick to use. "How are you going to prove that?" asks Camille Olson, an attorney at Chicago's Seyfarth Shaw LLC who has testified against the legislation on behalf of the U.S. Chamber of Commerce. "It would be very, very difficult."

Making matters worse, under the new law, damage awards would be uncapped, and class-action procedures loosened. Bring on the trial lawyers.

The nation already has strong legal protections for women in the workplace, even for cases of unintentional discrimination. Under the Equal Pay Act of 1963, employers can justify wage differentials only if they're based on gender-neutral factors, such as education, experience, productivity and market conditions.

This bill has its heart in the right place. It even has some worthwhile, less-intrusive provisions, such as protection from company retaliation for workers who share information about wages.

It has been approved by the House and is slated to reach the Senate floor next week. It is a high priority for the Obama administration. But it is much too intrusive, and the Senate should reject it.

<- Go Back