May 30 2012
Carrie L. Lukas
When the Senate comes back in session next week, expect an extra dose of preening about the noble cause of protecting women from the discrimination that plagues workplaces across America. The Senate plans to take up the Paycheck Fairness Act—legislation that would benefit trail lawyers, not women—as a way to once again beat the drum that Republicans are conducting a “War on Women” by not agreeing to everything on Democrats’ wish list.
These press events may be a little more awkward than usual, however. The Free Beacon recently reported that the very female Senators championing the Paycheck Fairness Act under the banner of the need for “equal pay for women” and closing the “wage gap” have considerable “wage gaps” in their own offices. Reporter Andrew Stiles wrote:
Of the five senators who participated in Wednesday’s press conference—Barbara Mikulski (D., Md.), Patty Murray (D., Wash.), Debbie Stabenow (D., Mich.), Dianne Feinstein (D., Calif.) and Barbara Boxer (D., Calif.)—three pay their female staff members significantly less than male staffers.
Murray, who has repeatedly accused Republicans of waging a “war on women,” is one of the worst offenders. Female members of Murray’s staff made about $21,000 less per year than male staffers in 2011, a difference of 35.2 percent.
These Senators would no doubt protest that this isn’t a fair analysis: The staffers in their office perform different jobs and have different levels of experience, which is why such pay differentials exist. Yet that’s exactly why the wage gap exists in the broader economy. And that doesn’t stop these Senators from using those statistics when they call for legislation to address the so-called problem.
Paycheck Fairness Act proponents ignore existing laws—including the much ballyhooed Lilly Ledbetter Fair Pay Act—that make sex discrimination illegal and give women grounds to sue their employers. The Paycheck Fairness Act would just tilt the legal playing field a little more in the favor of plaintiffs. This seems unlikely to make discrimination less of a presence in the workplace or lead to more just outcomes. It is sure, however, to create a lot more litigations and profits for trial lawyers.
The Paycheck Fairness Act would require employees to opt-out, rather than opt-in, to class action suits filed against their employers. It would also increase the potential payouts for plaintiffs and their lawyers by allowing punitive damage awards. The legislation would also make it more difficult for businesses to defend themselves. Instead of being able to justify differences in pay based on factors such as experience, job duties, and business necessity, employers would be vulnerable if an employee could demonstrate that “an alternative employment practice exists that would serve the same business purpose without producing such differential.” Such as ambiguous standard would encourage businesses to adopt rigid, one-size-fits-all compensation practices. That bad news for female workers who want to negotiate more flexible job arrangements.
Even the Washington Post recognized that the Paycheck Fairness Act is “a flawed approach to job bias,” and warned in an editorial that the legislation “would allow employees and courts to intrude too far into core business decisions.”
Democrats assuming that this rhetoric will be a big hit with women may be disappointed. After all, American women’s primary concern today isn’t that they are subject to hostile workplaces and are discriminated against on the job. Their biggest worry is that they and their loved ones can’t find jobs at all. Increased government examining of pay practices and more litigation isn’t going to solve that fundamental problem.
In fact, the Paycheck Fairness Act is another job killer: It’s another reason for businesses not to want to hire, since each new hire—particularly of a woman—is another potential lawsuit. Businesses worrying about litigation or bureaucrats thumbing through their employment records have less time and money to dedicate to expanding. The Paycheck Fairness Act would be another anchor dragging down economic growth, which is exactly what our economy—and American women—don’t need.
Yet helping real women isn’t the purpose of this new legislative push. This is pure politics. Democrats see painting the opposition as a sexist bogeyman as their path to victory. Americans should reject more than just unnecessary, big government proposals like the Paycheck Fairness Act, but the entire War on Women mantra.