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Paycheck Fairness Act resuscitated?

The Paycheck Fairness Act may have been resuscitated in the Senate last week when, on Wednesday, September 9, a motion to invoke cloture on a bid to proceed to consideration of the bill carried by a 73-23 vote. The question of whether the Senate will actually take up the bill for consideration will be answered post-cloture when chamber members vote on whether to move on to consideration of the controversial bill.

In April, Senate Democrats fell short of the necessary 60 votes required to prevail in a similar bid — the count was 53-44. While the April vote fell along party lines, with all Republicans voting against cloture, this time around, 19 Republicans voted in favor of the move.

Equal Pay Act amendments. The Paycheck Fairness Act, S. 2199, would amend the Equal Pay Act to revise enforcement remedies and existing exceptions to prohibitions against sex discrimination in the payment of wages.

Among other things, the bill would revise the exception for wage rate differentials based on any factor other than sex to limit the exception to bona fide factors, such as education, training, or experience. Moreover, the bona fide factor defense would apply only when an employer could demonstrate that the factor: (1) is not based on or derived from a sex-based differential in compensation; (2) is job-related with respect to the position in question; and (3) is consistent with business necessity. The defense, however, would not apply where the employee could demonstrate that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential; and (2) the employer has refused to adopt such alternative practice.

S. 2199 would also bar employer retaliation against employees for inquiring about, discussing, or disclosing their own or another employees’ wages in response to a complaint or charge, or in furtherance of a sex discrimination investigation, proceeding, hearing, or action, or an investigation conducted by the employer.

Under the proposed revisions, employers who violate the EPA’s sex-discrimination prohibitions would be liable in a civil action for either compensatory or (except for the federal government) punitive damages. The revisions also would permit an action to enforce the bar against sex discrimination to be maintained as a class action in which individuals could be joined as party plaintiffs without their written consent.

In addition, the bill would amend the Civil Rights Act of 1964 to require the EEOC to collect from employers pay-information data on the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.