Paycheck Fairness Act dies in Senate

The number of pay discrimination complaints handled by federal courts nearly tripled after Congress created the opportunity for punitive damages in 1991, he noted, but the Equal Employment Opportunity Commission finds no evidence of discrimination in about 60 percent of cases, and others are closed for administrative reasons. Chamber members report anecdotally that it costs about $25,000 to $50,000 to investigate and defend a routine complaint, Eastman said.

Eastman said the law rested on a faulty assumption that the unexplained parts of the wage gap are caused principally by employer discrimination, and he warned that the law would have prohibited pay practices that should be legitimate, such as paying higher salaries to employees who agree to work in hazardous locations, or who successfully negotiate for more pay. And while he agreed the law would have strengthened the EEOC’s hand, “they’re not an agency that deserves more leverage” because they do not always treat employers in good faith, he said. (Eastman added that the non-retaliation provision was not at the center of the Chamber’s objections.)

Advocates replied that many pay discrepancies would still have been allowed under the measure, as long as there was a true business-related reason for them. But they said some practices deserve more scrutiny: for example, experiments have found that women are viewed less favorably than men when they try to negotiate.

And, they said, warnings about frivolous litigation are raised every time Congress considers new anti-discrimination measures. “That is the same old story we’ve heard ever since the Civil Rights Act of 1964,” said Cheryl Polydor, an advocacy fellow with the National Employment Lawyers Association.

Kevin Clermont, a law professor at Columbia University who has studied employment litigation, said it was hard to know what share of the complaints that do not succeed are frivolous. But it is clear, he said, that employment discrimination plaintiffs in general lose much more than other plaintiffs, and it does not appear that the level of discrimination is falling sharply. His own view, Clermont said, is that “I do not think the courts are treating the plaintiffs fairly,” but that the best reform would be to educate judges better.

In the end, the arguments against the bill convinced just enough senators. Susan Collins and Olympia Snowe of Maine, two of the Senate Republicans who had voted for the Ledbetter Act, voted not to allow a final vote on the merits of the bill. Neither responded to requests for comment.

Kay Bailey Hutchison of Texas, who also supported the Ledbetter Act, said in a statement she opposed the recent measure because it allowed uncapped punitive damages even in cases of “unintentional discrimination.” The Senator’s claim does not acknowledge that punitive damages would not have been available in any case — intentional or otherwise — where the victim could not prove her employer had at least acted recklessly with respect to its legal obligations.

She also said the measure would have undermined performance-based pay programs, a statement that advocates disputed. Hutchison could not be reached for further comment.

Goss Graves of the National Women’s Law Center said the defeat was especially disheartening given the level of support the bill attracted. “It’s a really hard thing to explain, how getting 58 percent means that you lost a vote,” she said.