Michael J. Creighton, JD Anticipated May 2024, Law and Public Policy Scholar
When he ran for office in 2020, President Joe Biden promised to work with Congress to enact the Paycheck Fairness Act (“PFA”) into law. And while the Biden Administration has made significant strides toward equal pay by executive order, the PFA is still pending in the U.S. Senate. This is no surprise given the realities of a narrowly divided upper chamber combined with the formidable legislative filibuster, but the upcoming midterm elections could breathe life into this important issue. Pennsylvania Lieutenant Governor John Fetterman—the Democratic nominee for the Commonwealth’s open Senate seat—has expressed support both for enacting more aggressive laws to achieve pay parity and scrapping the filibuster. President Biden and Congress should take note—and be bold.
Currently under federal law, victims of pay discrimination have two potential remedies in the form of the Equal Pay Act (“EPA”) of 1963 and Title VII of the Civil Rights Act (“Title VII”) of 1964. The laws provide overlapping coverage and place the burden on plaintiffs to prove violations. Under the EPA, it is unlawful to engage in pay discrimination on the basis of sex if the jobs require “equal skill, effort, and responsibility” and the employees work within the same “establishment” under “similar working conditions.” There are several exceptions that employers may claim, including one for “any factor other than sex.” Under Title VII, pay discrimination on the basis of race, color, national origin, religion, or sex—which, according to the Supreme Court’s decision in Bostock v. Clayton County (2020), includes sexual orientation and gender identity—is considered an unlawful employment practice. Title VII also established the Equal Employment Opportunity Commission (“EEOC”), a federal agency which aids in the enforcement of both laws.
A plaintiff-centered litigation framework, like the one present under the EPA and Title VII, is not inherently bad. After all, these equal pay lawsuits enable workers to obtain thousands of dollars in backpay, and the EEOC is sometimes authorized to help represent those plaintiffs. However, this current framework misapprehends the problem. Employers are responsible for the pay gap, not employees. And employers have the resources, data, and decision-making authority to ensure equal pay, not employees. Not to mention, federal courts have been unsympathetic partners in Congress’s quest to achieve pay parity. So why should the heavy burden of proof fall squarely on the vulnerable groups impacted by pay discrimination?
The PFA would be a step in the right direction. The proposal would close major loopholes in current law and alleviate some of that burden currently shouldered by plaintiffs. The PFA would amend the breathtakingly broad “any factor other than sex” defense under the EPA and would increase the penalties for future violations. The bill would create a “National Award for Pay Equity,” an additional incentive for employers to pursue equal pay. Most critically, the PFA would empower the EEOC to collect employment data, including compensation data, from employers to better understand the pay gap and enforce the law.
That final provision—the EEOC’s collection of employment data from employers across the United States—would create the foundation necessary to shift the burden of ensuring equal pay from employees to employers. Thankfully, President Biden has someone on his team who has proposed such sweeping to changes to current federal law before—Vice President Kamala Harris.
When Vice President Harris ran for president in 2020, she proposed fundamentally reimagining the way the United States approaches equal pay. Under her plan, Vice President Harris would require employers to obtain an “Equal Pay Certification” by submitting employment data to the EEOC. If an employer could not demonstrate equal pay for equal work, that employer would be fined at a rate of 1% of average daily profits for every 1% pay gap that persists. Vice President Harris estimated that her plan would generate roughly $180 billion over ten years, which would be reinvested to reform other systemic inequalities that exacerbate the pay gap like offering universal paid family and medical leave. Employers would be required to publicize compliance reports online for all Americans to see. In three words, Vice President Harris would shift the burden—much like other democracies have done in recent years, with great success.
In 2022, the reality is this: on average, women in the United States are paid eighty-three cents for every dollar paid to men. And the gap is worse when broken down by racial group: Black women earn sixty-three cents for every dollar paid to white, non-Hispanic men in the United States, as do Native Hawaiian or other Pacific Islander women. American Indian or Alaska Native women earn sixty cents and Latinas earn just fifty-five cents for every such dollar. The United States has made progress since the federal government began tracking the data in 1960, but that progress has stalled. We only made as much progress closing the gap over the past three decades as we did in the 1980s alone. A significant change is long overdue.
Not to mention, equal pay is an issue that goes far beyond racial and gender equity. Equal pay is critical to economic development, as well supporting children and families. Each year, women’s lost wages reduce the national gross domestic product by 2.8%, or $541 billion. If the United States ensured equal pay, poverty among working women would be reduced by as much as half. Such a reduction would be critical for the increasing number of families relying on the wages of those underpaid working women.
So, mark your calendars for November 8th—equal pay is on the ballot! And when we win, we can finally shift the burden from employees to employers to close the pay gap once and for all.