We Repeat: Congress Must Pass the Paycheck Fairness Act!

The Equal Pay Act of 1963 made it illegal for employers to pay women less than men simply because they are women. The law was a short step in the right direction, but a half-century later we still inhabit a society in which women who do the same work as men earn substantially less. That this situation is unfair is obvious. Some try to minimize the extent of this unfairness, but almost no one tries to defend it anymore.

In fact, these practices are worse than unfair. They are economic and psychological abuse. Women are paid less, and what makes them unable to do anything to change this situation is, at bottom, just a naked threat: they will lose their jobs if they talk about it. The large majority of companies threaten workers with discipline, usually termination, if they discuss their compensation. So we are not allowed to find out how much others earn, and even when we do find out we are not allowed to mention it–no matter how unfair it is.

The most important step toward closing the pay gap is utterly obvious: if companies were not allowed to threaten people into silence regarding their decisions about how much to pay employees, or to retaliate against those who challenged those decisions, then our system would quickly improve through the usual processes of political, social, and legal action. President Obama recognizes the importance of transparency; he signed an Executive Order on April 1st, 2014 requiring federal contractors to publish wage data. That’s a start.

Three times now, U.S. Senators have failed to pass the Paycheck Fairness Act (PFA), which is designed to patch these holes in the Equal Pay Act. This law would protect the rights of employees to investigate and oppose sex discrimination at work. The law would prohibit employers from retaliating against employees who discuss their pay, it would empower the Equal Employment Opportunity Commission to collect data about employers’ compensation practices, and it would require employers who choose to pay women less than men to prove that there “bona fide factors,” such as differences in education or experience, which justify this disparity.

The arguments against the PFA have been predictable, and predictably weak.

First, opponents argue that the pay gap isn’t real, that it is based on false statistics, and that the difference between men’s and women’s pay results from factors other than discrimination. It is true that there are complex facts underlying the widely-cited claim that an average woman earns 77% of what an average man does for the same work, and that politicians tend to oversimplify those facts. For example, women who work 40 hours per week earn 87% of their male counterparts, and Black women earn 94% of what their Black male counterparts do. But the fact that a scientific explanation is complex doesn’t always speak against it; sometimes the facts are complex and no single statistic sums them up well. In this case sensitive researchers and commentators who look at these data in detail end up concluding that the pay gap is both large and real. They conclude that, even after we correct for all of the complicating factors, women probably do make at least 20% less than men for the same work. Generally, the more education and training a woman gets, the less she will earn relative to her male counterparts. Most of us have had enough direct experience with women making substantially less than their male counterparts to know that these ideologically-motivated denials are designed to minimize this problem and mislead people about it, and ultimately to provide comfort to those who would prefer not take the issue seriously.

The second objection we hear is that discrimination is already against the law, so the PFA would be redundant and would probably function only to line the pockets of lawyers. From what I have explained so far, it is clear that the charge of redundancy is absurd; the Paycheck Fairness Act would do things that no previous legislation has done. Its transparency and non-retaliation provisions are the cornerstone of any anti-discrimination policy that has a chance of being effective, and that this is precisely the reason that those provisions garner such strong resistance. As for the charge that the law is intended to enrich lawyers, it is true that one goal of the PFA is to make it possible for people to sue companies whose compensation structures systematically favor male employees. And this would indeed generate business for some lawyers. Lawyer-bashing is a national pastime, and of course our legal system is imperfect, but the courts remain our only means of defending our rights and protecting ourselves from exploitation. Think about it: if a powerful person steals from you, the law is your only defense. Some naive people convince themselves that people win discrimination lawsuits because their greedy lawyers trick people, but the truth is that plaintiffs win when they make arguments that persuade judges, juries and litigants that someone was deprived of something they were entitled to. And however tempting cynicism might seem, we do well to remind ourselves that companies can always choose to avoid lawsuits by respecting and following the law rather than finding ways to keep their illegal actions secret.

A third objection raised by opponents of the PFA is that it would backfire and actually harm women. According to this argument, if the bill passes the cost of labor will rise and businesses will suffer, indirectly making economic conditions worse for women. These arguments are trotted out for every anti-discrimination law, and are just ugly attempts to scare people and set them up to blame themselves for the backlash that anti-discrimination laws always generate. These speculations always turn out to be false, except to the extent that defenders of the current system can succeed in making them true. But the main economic issue in this case, as the senators themselves actually explain in the text of the bill, is that all other general considerations are more than outweighed by the economic damage we currently suffer by having a distorted labor market which fails to incentivize women’s work as it should. It is true that the PFA would take away a discount that businesses have enjoyed on women’s labor, and that this would affect profit margins. People who have enjoyed an undeserved privilege always come to feel entitled to it and protest when they lose it, but these are the complaints of interested parties which are and ought to be trumped by our disinterested system of laws and justice.

The Paycheck Fairness Act should become the law of this land. As a free people, we value access to information and open dialogue. These are our tools for diagnosing and solving our problems, both practical and moral. We must shut down the regime of enforced secrecy that shields American companies from accountability for discriminating against women.

If you are believe that you have been a victim of sex discrimination by your employer, please contact The Harman Firm, LLP