Decoding the Paycheck Fairness Act


Cherise Charleswell I Women's Issues I Analysis I May 6th, 2014



Just a year ago, I penned the article Dollars & Sense: Why Equal Gender Pay Matters. This hot button issue is now, once again, part of the prevailing public discourse. Political pundits are discussing it in terms of the upcoming Midterm elections, public health specialists have thrown their support behind efforts to close the gender pay gap, and of course activists - in the labor movement and women's rights movements - have openly advocated for legislation that will address this issue. Despite the passage of the 1963 Equal Pay Act (EPA), which made it illegal for employers to pay unequal wages to men and women who perform substantially equal work, grave disparities in pay continues. These disparities have great consequences for women and families, in that they contribute to what is referred to as the Feminization of Poverty. Ultimately, in the United States and on a global scale, women represent a disproportionate share of those in poverty. Further, this phenomenon is not a mere consequence but is a result of the deprivation of opportunities and gender biases present in both society and government, and that includes failed, flawed, and limited legislation such as the EPA, which have resounding ramifications that impact many facets of a woman's life, as well as that of their families. Thus, pointing to the central problem with the conventional discussion on equal gender pay, the propensity to just make the topic a marginalized women's issue. Stronger legislation that will provide the necessary protections for equal pay and livable wages is needed to help ensure the social advancement of women. The Paycheck Fairness Act represents an attempt to strengthen the 1963 Equal Pay Act.


Why Is The Paycheck Fairness Act Needed?

In short, the Paycheck Fairness Act is needed because a real gap exists across genders and women earn considerably less than men; also, this gap exists across ethnic and racial lines. What does that mean? That means women of color bear the greatest burden of poverty and inequity. On average women only earn about 77 cents on the dollar compared with men . Further, African-American women and Latinas take home even less, just 64 cents and 54 cents, respectively, for every dollar earned by white men.

Another significant problem is that the gender pay gap widens over a lifetime and becomes an even more particular hardship when a woman becomes a mother. The wage gap is smaller for younger women than older women, but it begins right when women enter the labor force. Women 15-24 working full time, year round are typically paid just 87.7 percent of what their male counterparts are paid. Among older women, the gap is even larger. Women 45-64 working full time, year round are typically paid just 73.5 percent of what their male counterparts are paid. For women still working at age 65 and older the figure is 70.2 percent.1 This growing gap can be attributed to the differences in hours, occupations, promotions and positions, job sector that are inequitably distributed across genders, along with societal values and blatant and/or subtle gender discrimination. For instance, we never consider the fact that what is traditionally deemed as "women's work" is not highly valued. So, those who look after the care of children and the elderly, who happen to be disproportionately women, are paid far less than those who are grounds-and-zoo keepers, who look after the day-to-day care of animals.

In the United States, a record 40% of all households with children under 18 are headed by women who are the sole or primary source of income for the family . While, in 2012, more than 14.3 million married couples with children relied on both parents' earnings, representing 58.0 percent of all married couples with children.2 These statistics underline the fact that the gender wage gap is not just a women's issue. Women make up a large part of the workforce, and their incomes are depended upon for their families' wellbeing, particularly during these difficult economic times. Having diminished wages makes it difficult for them to provide themselves and their families with needed child care, healthy food options that will decrease the risk of obesity and subsequent chronic diseases, and safe housing conditions.

Also, women spend a substantial amount of their income on out-of-pocket health costs and health insurance premiums, and they are more likely than men to experience serious financial hardship as a result of having to pay medical bills. In 2010, the most recent year for which these statistics are available, one-third of working-age women spent 10 percent or more of their income on these expenses, and nearly one-third of women who had medical bill or debt problems were unable to pay for basic necessities like food, heat, or rent because of their medical bills.3 Even the cost of sanitary napkins, panty liners, and tampons monthly, which can run up to $144 annually, represent another medically necessary expense that women are burdened with. While, the cost of contraception, is still another economic hardship that is exclusively regulated to women. As expected, the gender wage gap also poses a problem for women entering retirement and the inequity is even more pronounced. One study found that the typical woman worker near retirement with a defined contribution plan or individual retirement account had accumulated $34,000 in savings, while her male counterpart held $70,000 - more than twice as much. 4

All of this again points to the fact that wage discrimination is deeply rooted in our legal system, cultural history, and society. A cultural bias persists that still views men as the primary breadwinners in a household, and the income of married women is still viewed as only being supplemental. Single and independent women or lesbian households are not even truly considered. Ultimately, between one-quarter and one-third of the wage gap cannot be explained by rational factors, such as education or experience.

Consider the fact that women have higher rates of education and college enrollment than men. There has been much discourse around the fact that the marked trend is that women are "marrying down". Wives are actually more likely to be the better educated partner than the other way around, and this trend is particularly sharp among newlyweds; in 2012 almost 40% of college educated women were married to a guy without a degree. These higher rates among newlyweds make sense, when considering that older women were given less of an opportunity to pursue a college education.More women than men have been graduating from college at all levels- bachelors, masters and doctoral. In terms of future generations, this educational gap may widen, when considering that by 2012, the share of young women enrolled in college immediately after high school had increased to 71%, but it remained unchanged for young men at 61%.

Yet, the gender wage gap persists; which again points to the fact that it is due to socio-cultural, gender and racial discrimination in the workplace.


What Is The Paycheck Fairness Act Exactly?

The Paycheck Fairness Act is not a new law, rather it is technically an amendment to the Fair Labor Standards Act of 1938 (FLSA), which remains the principal federal law covering minimum wage, equal pay, overtime requirements, and other labor-related issues that Americans have come to take for granted. The Equal Pay Act of 1963 (FLSA) was also an amendment to the FLSA. Considering the various reasons why an amendment is made helps to underscore the importance of the Paycheck Fairness Act. One of the most important features of the US Constitution is the inherent ability to amend or change the document in order to adapt to changing times and conditions. The changing social position of women, with their role as sole or primary breadwinners in households, makes a constitutional amendment necessary. This change in legislation is necessary to ensure that these workers are not discriminated against in the workplace. The Constitution must be reflective of the nation's beliefs - particularly when our belief and value systems have evolved. We cannot merely say that women and men are equal in our society, without amending the Constitution to reflect these beliefs. Last, it is these changes to the Constitution, the subsequent amendments, such as the proposed Paycheck Fairness Act, that strengthens it. Amendments are vital and help the nation to move progress forward. The Paycheck Fairness Act is technically referred to as H.R.438 by the 113th Congress (2013-2014) and the current version was introduced in the house on January 29, 2013. Its approval would have resulted in amending the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on account of sex, race, and national origin.

The Act would also legislate the following:

· Prohibits the discharge of, or any other discrimination against, an individual for opposing any act or practice made unlawful by this Act, or for assisting in an investigation or proceeding under it.

· Directs courts, in any action brought under this Act for violation of such prohibition, to allow expert fees as part of the costs awarded to prevailing plaintiffs. Allows any such action to be maintained as a class action.

· Directs the Equal Employment Opportunity Commission (EEOC) to: (1) undertake studies and provide information and technical assistance to employers, labor organizations, and the general public concerning effective means available to implement this Act; and (2) carry on a continuing program of research, education, and technical assistance with specified components related to the purposes of this Act.

· The bill would prohibit retaliation against employees who share their salary information with each other, which supporters say would eliminate the culture of silence that keeps women in the dark about pay discrimination.

· It would also require the Department of Labor to collect wage data from employers, broken down by race and gender, and require employers to show that wage differentials between men and women in the same jobs are for a reason other than sex.

· The Equal Employment Opportunity Commission shall conduct studies and provide information and technical assistance to employers, labor organizations, and the general public concerning effective means available to implement the provisions of section 6(h) prohibiting wage rate discrimination between employees performing work in equivalent jobs on the basis of sex, race, or national origin. Such studies, information, and technical assistance shall be based on and include reference to the objectives of such section to eliminate such discrimination. In order to achieve the objectives of such section, the Equal Employment Opportunity Commission shall carry on a continuing program of research, education, and technical assistance including-

"(A) conducting and promoting research with the intent of developing means to expeditiously correct the wage rate differentials described in section 6(h);

"(B) publishing and otherwise making available to employers, labor organizations, professional associations, educational institutions, the various media of communication, and the general public the findings of studies and other materials for promoting compliance with section 6(h);

"(C) sponsoring and assisting State and community informational and educational programs; and

"(D) Providing technical assistance to employers, labor organizations, professional associations and other interested persons on means of achieving and maintaining compliance with the provisions of section 6(h).


The Bills Defeat

On April 9, 2014, Senate Republicans voted unanimously - that is right, unanimously, along with Independent Senator Angus King (I-Maine) - against proceeding to debate the pay equity Bill, and their actions signaled the third defeat of The Fair Paycheck Act. While all Democrats and Independent Senator Bernie Sanders (I-Vermont) voted in favor. Thus, the Senate vote to move forward was 53 to 44, which fell short of the 60 votes needed to overcome a Republican filibuster. In an attempt to defend their actions against what should truly have been a non-partisan and unanimous vote in favor of the bill, Republicans claim that, given existing anti-discrimination laws, the legislation is redundant. Never mind the back-story that explains the necessity of the Constitutional amendment. It is as if they are being willfully ignorant to the fact that the existing legislation has loopholes that render it ineffective and thus allows for the continuation of the gender pay gap.

In discussing the Republican vote, Senator Harry Reid (D-Nevada), the majority leader, offered the following comments, "For reasons known only to them, Senate Republicans don't seem to be interested in closing wage gaps for working women". The reasons behind the unanimous act may perhaps be the continuation of the War Against Women, as well as a promised act of defiance against anything that the Obama administration endorses or supports. As a reminder following President Obama's 2008 election, Senator Mitch McConnell (R-Kentucky), infamously stated that the single most important thing we want to achieve is for President Obama to be a one-term president. So, the needs of the average American citizen, voters, etc. were not to be considered then, and they are still not being considered now, due to a political vendetta that has only helped to fuel division in the Congress, which makes bipartisan efforts and any act of governance damn near impossible.

Here is a complete list of those Senate Republicans who decided to vote against the bill :

Senator

State

Lamar Alexander

Tennessee

Kely Ayotte*

New Hampshire

John Barrasso

Wyoming

Roy Blunt

Missouri

John Boozman

Arkansas

Richard Burr

North Carolina

Saxby Chambliss

Georgia

Jeffrey Chlesa

New Jersey

Daniel Coats

Indiana

Tom Coburn

Oklahoma

Thad Cochran

Mississippi

Suan Collins*

Mane

Bob Corker

Tennessee

John Cornyn

Texas

Mike Crapo

Idaho

Ted Cruz

Texas

Mike Enzi

Wyoming

Deb Fischer*

Nebraska

Jef Flake

Arizona

Lindsey Graham

South Carolina

Chuck Grassley

Iowa

Orin Hatch

Utah

Dean Heller

Nevada

John Hoeven

North Dakota

James Inhofe

Oklahoma

Johnny Isakson

Georgia

Mike Johanns

Nebraska

Ron Johnson

Wisconsin

Mark Kirk

Illinois

Mike Lee

Utah

John McCain

Arizona

Mitch McConnell

Kentucky

Jerry Moran

Kansas

Lisa Murkowski*

Alaska

Rand Paul

Kentucky

Rob Portman

Ohio

Jim Risch

Idaho

Pat Roberts

Kansas

Marco Rubio

Florida

Tim Scott**

South Carolina

Jeff Sessions

Alabama

Richard Shelby

Alabama

John Thune

South Dakota

Pat Toomey

Pennsylvania

David Vitter

Louisiana

Roger Wicker

Mississippi

All except the following Republican Senators are middle-age or older White men.

* White woman

**African American man


President Obama Issues an Executive Order

President Obama actually kept his promise to champion women's rights in the workplace by signing an Executive Order on April 8, 2014, that addresses the issue of unequal pay among federal contract workers. In addition, the Lily Ledbetter Fair Pay Act of 2009, which makes it easier for women to sue employers for discriminatory wage practices, by introducing a 180-days window after each paycheck during which women may challenge employers; was the first measure that Barack Obama signed into law as President.

The Executive Order primarily addresses the government's gender wage gap by mandating that contractors publish wage data---by gender and race--to ensure compliance with equal-pay laws. Further, the order prohibits contractors from retaliating against employees who compare salaries. In short, the order penalizes pay secrecy. For Federal contractors the Executive Order helps to eradicate a problem that was not addressed by the Lily Ledbetter Fair Pay Act of 2009, and that is that many women do not even know that they are being underpaid, and therefore cannot take steps to ensure equal pay for equal work.

Other mandates of the Executive Order include:

· The Executive Order provides a critical tool to encourage pay transparency, so workers have a potential way of discovering violations of equal pay laws and are able to seek appropriate remedies.

· In addition, the President is signing a Presidential Memorandum instructing the Secretary of Labor to establish new regulations requiring federal contractors to submit to the Department of Labor summary data on compensation paid to their employees, including data by sex and race. The Department of Labor will use the data to encourage compliance with equal pay laws and to target enforcement more effectively by focusing efforts where there are discrepancies and reducing burdens on other employers.

More than 13,000, in one form of another, Executive Orders have been issued since 1789, and every president, from George Washington on, has used them. It is a "grant of executive power" given to President's in Article II of the US Constitution. Essentially, an Executive Order is a directive issued by the leader of the Executive Branch (President), which is used to direct certain tasks or actions to Cabinet members and other executive officers. In rare cases Executive Orders can also have the "force of law". In terms of expanding or restricting women's rights, Executive Orders have been used for this purpose in the past. In 1994, President Ronald Regan used an executive order to bar the use of federal funds for advocating abortion, and this order was reversed in 1993 by President Bill Clinton.

The fact that these Executive Orders can be overturned or impeded (by Supreme Court action or Congress passing legislation that would conflict with the order, or by refusing to approve funding to enforce it) speaks to the cynics beliefs that the order is simply not enough. Without full funding and enforcement it may just be a symbolic gesture. Even more importantly it speaks to the need for public engagement, especially voting. Obviously Republicans have shown that they unanimously oppose the Paycheck Fairness Act, and by extension this Executive Order. Civic engagement is the defense against the blocking and overturning of this Executive Order. Civic engagement would ensure that the members of Congress elected or re-elected in November, support the executive order and other Congressional efforts to close the gender pay act, along with ensuring that the next elected President also supports these efforts, and will work to uphold this executive order.


Next Steps

If-and-when Congress finally passes The Paycheck Fairness Act, which promises equal pay for what is deemed equal work, a disparity in pay may still persist due to the fact that women are still locked into low paying administrative and service positions, despite proving to be more educated than men. A simple glance at the gender balance in the US Congress exemplifies this fact. Women may make up about 52% of the population, yet they do not have equal representation in Congress, where they only make up 22%. There is still a prevalent gender segregation across job sectors, as well as a " good ol boy network" that regulates the vast majority of executive and management position to men, especially white men; which again explains the noted rates of disparity in pay. The necessary change may not be one that can be legislated, unless it will involve affirmative action measures that mandate gender diversity amongst executives and management; and this can certainly be done with federal contractors. Ultimately, it will require continued social evolution and a challenge to a patriarchal culture, that still views men as the heads of the household, natural leaders, sole breadwinners, and thus worthy of higher paying jobs.

Still, the act of civil engagement cannot be overemphasized when considering addressing the Feminization of Poverty and closing the gender pay gap. Women, regardless of political party affiliation, must truly consider the fact that Republicans did indeed vote as a block to not allow any debate over the bill. This knowledge should be carried with women and men of conscious into the voting booths come November, especially voters in Kentucky, where Senator Mitch McConnell will be fighting for re-election against a female candidate. Ultimately, we need elected legislatures who will pass the Fair Paycheck Act, which will close all loop holes to gender-based pay discrimination.



References

NWLC calculations from U.S. Census Bureau, Current Population Survey, 2013 Annual Social and Economic Supplement [hereinafter CPS, 2013 ASEC], Table PINC-05: Work Experience in 2012 - People 15 Years Old and Over by Total Money Earnings in 2012, Age, Race, Hispanic Origin, and Sex, available at http://www.census.gov/hhes/www/cpstables/032013/perinc/toc.htm (last visited Sept. 30, 2013). Women working full time, year round had median annual earnings of $37,791 in 2012. Men working full time, year round had median annual earnings of $49,398 in 2012

NWLC calculations from U.S. Census Bureau, America's Families and Living Arrangements Survey: 2013, Table FG2: Married Couple Family Groups, by Family Income, and Labor Force Status of Both Spouses: 2013, available at http://www.census.gov/hhes/families/data/cps2013FG.html (last visited Dec. 30, 2013). Family households are used in this figure to be consistent with the statistics on single mothers. Data are from the CPS, 2013 ASEC but are for the year 2012. No children means no own children under 18 present in the household. There may be older children who could possibly live with these couples.

R. Robertson and S.R. Collins, The Commonwealth Fund, Women at Risk: Why Increasing Numbers of Women Are Failing to Get the Health Care They Need and How the Affordable Care Act Will Help (2011), available at http://www.commonwealthfund.org/Publications/Issue-Briefs/2011/May/Women-at-Risk.aspx .

Leslie E. Papke, Lina Walker, & Michael Dworsky, Retirement Security for Women: Progress to Date and Policies for Tomorrow (2008), available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Retirement_security/RSP-PB_Women_FINAL_4.2.2008.pdf .