A Setback for the Paycheck Fairness Act, but the Equal Pay Act Remains

18 June 2012 Labor & Employment Law Perspectives Blog

 The latest effort to pass the “Paycheck Fairness Act” has stalled in the U.S. Senate. The current version of the bill would make various changes to the portions of the Fair Labor Standards Act known as the Equal Pay Act. Currently, the Equal Pay Act prohibits employers from paying members of one sex a lower wage than members of the other sex for doing the same work.  The Paycheck Fairness Act would, among other things, make it more difficult for employers to avoid liability for sex-based pay differentials, add prohibitions against retaliation for discussing or inquiring about wage rates, and increase penalties for violations. Democrats had previously tried and failed to pass a similar bill in 2010. (For additional information, see Legal News: Employment Law Update February 6, 2012 related to wage gap. On June 5, 2012, Senate Democrats sought to move the bill to debate, but the motion was defeated by a vote of 52 to 47. The defeat derailed the bill, at least for the time being, although its supporters have indicated they may try to push the bill forward again in the future.Although the Paycheck Fairness Act has been stopped for now, employers should remember that the Equal Pay Act remains in full force and effect. In fact, the day after the Senate vote, the federal Eighth Circuit Court of Appeals issued a decision involving an Equal Pay Act claim. The court held that the Equal Pay Act imposes a “strict liability” standard on employers. Under this standard, a plaintiff does not need to show that the employer acted with discriminatory intent, but need only prove that she was paid less than similarly situated men. The burden then shifts to the employer to prove that any pay disparity is justified by a seniority system, a merit system, a pay system based on quantity or quality of output, or is based on another factor other than sex.

Although the Paycheck Fairness Act has stalled, we may not have seen the end of the effort to toughen federal standards governing allegations of sex-based pay differentials. However, even in the absence of any new legislation, the Equal Pay Act’s “strict liability” standard will continue to give employees a potent weapon to attack perceived sex discrimination in pay rates.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights