Democrats Strike Early With Labor Rights Bills

Two pay discrimination bills on the House floor Friday could be among the first that labor-friendly Barack Obama signs into law when he becomes president later this month.

Last year, President George W. Bush threatened to veto both the Lily Ledbetter Fair Pay Act, which would overturn a 2007 Supreme Court decision making it more difficult to sue over past pay discrimination, and the Paycheck Fairness Act, which closes loopholes allowing employers to get around the 1963 law requiring equal pay for equal work.

The bill the House is considering would clarify that each paycheck resulting from discrimination would constitute a new violation, extending the 180-day statute of limitations.

Critics said the bill would allow people to file discrimination suits against employers for decades-old actions. But the liberal Alliance for Justice said the Supreme Court decision had already seriously impacted worker rights: it said that since the 2007 ruling federal and other courts had cited Ledbetter in 347 pay discrimination cases.

The Paycheck Fairness Act seeks to close loopholes in the 1963 Equal Pay Act by making clear that victims of gender-based discrimination can sue for compensatory and punitive damages. It also puts the burden on employers to prove that any disparities in wages are job-related and not sex-based, and bars employers from retaliating against workers who discuss or disclose salary information with their coworkers.

Randel Johnson, the U.S. Chamber of Commerce's vice president on labor issues, said his group would oppose the measure, saying it was a ''giveaway to the trial lawyers'' and would ''make it difficult for an employer to defend any kind of pay disparity.''

With job losses accelerating, the Democrats want to make it easier for employers to be sued. The only silver lining I can see is that Democrats will be held responsible for the state of the economy in coming elections.

Here is an excerpt from testimony in Congress of someone representing the Chamber of Commerce testifying in Congress against the "Paycheck Fairness Act".

Today we are here to discuss the meaning and impact of the Paycheck Fairness Act (the “Act”). If enacted, the Act would amend the Equal Pay Act of 19631 (“EPA”) in significant substantive and procedural ways, all upon a unsubstantiated, premise that throughout the United States of America, all unexplained wage disparities existing between men and women are necessarily the result of intentional discrimination by employers.

On that assumption, the Act would impose harsher, “lottery-type” penalties upon all employers, lower the applicable standards for claims, and make available a more attorney-friendly class action device (among other suggested changes). The Act’s proponents contend these changes are necessary to ensure equal pay for women. Nothing could be farther from the truth. In reality, the Act would expand litigation opportunities for class action lawyers seeking millions of dollars from companies without ever having to prove that the companies intentionally discriminated against women. The proposed changes to the EPA are also contrary to the most fundamental underpinnings of that Act - the requirement of equal pay for equal work balanced against the mandate that government not interfere with private companies’ valuation of the work performed for them and more generally, the setting of wages.

The proposed changes are also inappropriate given the EPA’s distinguishing features, relative to other nondiscrimination legislation. Perhaps the most notable difference to note is the lack of any requirement to prove intentional discrimination under the EPA. This feature separates the EPA from Title VII of the Civil Rights Act of 1964, as amended,3 the Age Discrimination in Employment Act,4 the Americans with Disabilities Act,5 as well as Section 1981 of the Civil Rights Act of 1866 and Section 1983 of the Civil Rights Act of 1871. These statutes allow for the imposition of compensatory and punitive damages, but only upon a finding of intentional discrimination by the employer. Unlike these statutes, the EPA currently imposes liability on employers without any required showing that the employer intended to discriminate against the worker.

Commentators and courts have often referred to this leniency in the EPA as rendering employers “strictly liable” for any pay disparity between women and men for equal work unless the employer meets its burden of proving that the rate differential was due to: a seniority system, a merit system, a system measuring quality or quantity of work, or any other factor other than sex. The irrelevancy of an employer’s intent is a defining feature of the EPA, and must be remembered as the significant amendments to the EPA suggested by the Paycheck Fairness Act are debated.

For these reasons, and all of the reasons set forth below, the Chamber strongly opposes the Paycheck Fairness Act. We urge the Subcommittee to carefully consider the issues raised by the Chamber and proceed cautiously in considering the Act.

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