For the last two decades, Congressional Democrats have attempted to pass the Paycheck Fairness Act. Beginning with the 105th Congress in 1997-98, several legislators have introduced versions of the act, including then-Senator Hillary Clinton in 2005. Following their newly won majority in the House of Representatives, Democratic lawmakers recently re-introduced the Paycheck Fairness Act on January 30, 2019. The proposed bill, H.R. 7, was introduced by Representative Rosa DeLauro (D) and appears to have considerable Congressional support. Notably, cosponsors of H.R. 7 include every Democratic member of the House of Representatives and forty-five Senators.
The Congressional findings in the proposed text included the following rationale for the bill:
Despite the enactment of the Equal Pay Act of 1963, many women continue to earn significantly lower pay than men for equal work. These pay disparities exist in both the private and governmental sectors. In many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination.
As introduced, the proposed Paycheck Fairness Act has a number of key components:
- Prohibits employers from asking applicants about prior salary;
- Prohibits employers from relying on an applicant’s salary history for hiring or salary determinations;
- Prohibits a contract or waiver that would prohibit employees from disclosing information about employee’s wages;
- Changes the employer defense in an equal pay claim from “any other factor other than sex” defense to “a bona fide factor other than sex, such as education, training or experience”;
- Enhances penalties for employers who retaliate against employees for sharing salary information;
- Enables employees to sue for damages resulting from pay discrimination;
- Establishes grant funds for negotiation skills training programs for girls and women;
- Provides for more education and outreach to employers about eliminating pay disparities; and
- Changes the class actions procedure so that FRCP Rule 23 would govern, thus no longer requiring plaintiffs to “opt in” to participate in a class.
Whether or not Congress passes H.R. 7, several states have independently revised their state equal pay acts to include some version of several features of the Paycheck Fairness Act, including California, New York, New Jersey, Massachusetts, Washington, Oregon, and Hawaii.
We will continue to post developments as the proposed bill works its way through Congressional committees.