The Daily Caller

The Daily Caller

Why the Paycheck Fairness Act hurts women

Photo of Nena Bartlett
Nena Bartlett
Executive Director, Ladies of Liberty Alliance

The Congressional Budget Office said in a report that men and women who have similar family roles do not experience a wage gap. We can argue that men and women who take on a bigger family role should earn the same amount as everyone else, but that is a different issue entirely than what is being discussed today on “Equal Pay Day.”

The Paycheck Fairness Act will be reintroduced in Congress this week in the days following Equal Pay Day, a politically advantageous move for supporters of the bill. If passed, the bill will drastically expand the scope of the most recent pay equity law, the Lilly Ledbetter Fair Pay Act of 2009 – and create worse conditions for women.

Five years ago, in the name of fairness and equality, Congress passed the Lilly Ledbetter Fair Pay Act as an answer to the uproar surrounding the Supreme Court’s decision in Ledbetter v. Goodyear. Lawmakers and progressives cited the gender pay gap as a visible consequence of the type of discrimination that Lilly Ledbetter faced, discrimination that could be stopped with the Fair Pay Act. Not only will women be able to demand justice, they said, but the law will narrow the pay gap by forcing employers to end their discriminatory practices.

Critics warned of the unintended consequences of this legislation. By removing the statute of limitations in pay discrimination cases, the Fair Pay Act could produce an adverse hiring environment for women, regardless of the family role that they play in their home lives. Employers would use valuable resources on records of payment decisions, be unwilling or unable to make cost-saving decisions regarding their employees, or pay employees the same regardless of productivity. If employers see women as lawsuit risks, they might avoid hiring them altogether.

It’s five years later and it looks like the critics were right. The wage gap was steadily (albeit slowly) falling at the time of the passage of the Fair Pay Act, reaching an all-time low of 22.2 percent in 2007, but has since stagnated, hovering around 23 percent. In 2012, it widened to 23.5 percent, a level not seen in almost ten years. Gains in employment have mostly been in low-salaried fields – 60 percent of employment increases for women from 2009-2012 were in positions that pay about $10 per hour. In short, opportunities for women are shrinking.

And yet, progressives explain this by claiming the Fair Pay Act does not do enough to “help” women. They say that it is “clear” that the pay gap will not shrink without the government’s help – ignoring almost 50 years of data in which the pay gap narrowed from around 43 percent to that low of 22 percent.

That’s probably mostly because now, more than ever before, women are focusing on furthering their education and career, and many men are taking over more family and home duties. Maybe women and men should equally want to further their careers, maybe they should be equal in the amount of duties they take on at home, and that is a topic that our society will continue to explore. But should the government decide what is right for individual men and women, mothers and fathers?

The federal government cannot equalize the sexes. The only fairness government can ensure is equality under the law. If the Paycheck Fairness Act passed, the law surrounding pay decisions would encourage companies to treat people differently. The burden of proof will rest on employers to demonstrate that unequal pay decisions are not based on discrimination, but rather on individual circumstances surrounding the employee.

In the event of a lawsuit, which the law makes far easier – as well as more attractive by allowing for unlimited awards – each pay decision made by the employer would be scrutinized. Employers will be forced to keep meticulous records if they have any hope of defending themselves against a discrimination charge.

The Paycheck Fairness Act will make it harder for women to negotiate their own salaries, and for the company to respond to the needs and demands of those it employs. There are many conceivable reasons a woman might accept a lower salary: perhaps they’d like to market themselves competitively when coming back to work after raising children, or exchange lower pay for flexible hours. Under the Paycheck Fairness Act, these women will find themselves at a disadvantage.