Setting the Record Straight on the Paycheck Fairness Act

"The Trial Lawyer Paycheck Act," a piece that ran on the Opinion page of the Wall Street Journal on Monday, is riddled with falsehoods about the Paycheck Fairness Act, which failed to garner the 60 votes needed to defeat a filibuster in the Senate on Tuesday. It's time to set the record straight.

1. False: The Wall Street Journal claimed that existing laws are adequate to address pay discrimination.

The Truth: Existing laws do not sufficiently protect women from wage discrimination. How do we know that's true? Because wage discrimination is still pervasive today, although it has been illegal since the Equal Pay Act was passed in 1963. The Lily Ledbetter Act, passed in 2009, keeps the courthouse doors from being slammed shut on women who are subject to wage discrimination by merely restoring the law about when employees can bring these claims to what it was prior to the Supreme Court's 2007 decision in Ledbetter. The Paycheck Fairness Act is crucial to preventing that discrimination from occurring in the first place. It would strengthen the Equal Pay Act in critical ways by ensuring that women can find out whether they are being paid less than their male counterparts without putting their jobs at risk and giving women the tools they need to combat wage discrimination.

2. False: "To the extent there remains a male-female wage gap, it is mostly a function of occupational and lifestyle choices."

The Truth: Research has conclusively shown that after controlling for the other factors that might explain the difference in pay between men and women, time out of the workforce, job tenure, occupational choices, and the like, there is still a very significant wage gap that is entirely unexplained by any of these factors.

3. False: The bill ought to be called "The Trial Lawyer Paycheck Act."

The Truth: Why is it when employees try to protect their rights in the workplace, their efforts are often portrayed as only good for their lawyers? This bill simply brings the Equal Pay Act in line with the rights and remedies available to employees who are discriminated against on the basis of their race or national origin. When employees are egregiously discriminated against on these bases they can seek damages to remedy that discrimination. Why shouldn't women have these same protections?

Far from being a bill about trial lawyers, this bill is about ensuring that women and men can provide for their families. Women are primary or co-breadwinners in a majority of American families today. When women earn less — just because they are women — this means American families have less money to put toward the mortgage, groceries, child care, tuition, and other expenses.

4. False: "Businesses would be treated as guilty until proven innocent."

The Truth: Where to even start with this one...? This bill does nothing to alter the requirement that a plaintiff claiming wage discrimination show that she is being paid less than a comparable male employee for equal work, requiring equal skill, effort and responsibility. Only if a plaintiff has made this showing is an employer even required to defend its pay practice. So to set the record straight on this one — it's still "innocent until proven guilty." And to squash another falsehood opponents like to trot out, no, criminal penalties are not available under this law. (Seriously, where do they get this stuff?)

5. False: "The bill is a first step toward federal pay mandates."

The Truth: Under this bill, employers are absolutely free to give employees an honest day's pay for an honest day's work. What could be more true to American free-market values than that?

This bill isn't about trial lawyers, and it isn't about political games. It's about making sure America's working women can put food on the table for their families without one hand tied behind their backs. Millions of Americans were disappointed this week by their Senators' failure to stand up for their families and their rights by supporting the Paycheck Fairness Act.

So, for those of you who want the real story, there it is.