What the Paycheck Fairness Act really does

Saturday, October 2, 2010

The Sept. 28 editorial "Fair-pay misfire," about the Paycheck Fairness Act, recognized the importance of eliminating gender-based pay discrimination and highlighted the fact that the bill contains "sensible provisions" to achieve that end. But it also misconstrued the act as containing new, loose standards that would leave businesses unable to adequately defend themselves in court against a woman's equal-pay claim.

Leaving aside all the barriers that prevent women from bringing meritorious claims to court and the vastly superior resources that employers generally have in such cases, the bill just clarifies vague language in the Equal Pay Act of 1963 and applies well-established legal standards that are in place for other types of pay discrimination.

The editorial focused on a provision that would apply a "business necessity" defense that an employer would have to show to justify giving less pay to a woman than it gives to a man. This provision also gives a woman denied equal pay the ability to show that her employer refused to adopt available business alternatives that would not produce such a disparity.

Both of these principles have been enshrined in law for decades for other types of employment discrimination and have been applied by a few courts in equal-pay claims. The court interpretations in these cases have been eminently reasonable and allay hypothetical concerns about giving women the same rights to combat pay discrimination that are available in other types of discrimination cases.

Marcia D. Greenberger, Washington

The writer is the co-president of the National Women's Law Center.

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