Employment

Under the Equal Pay Act, the law that makes it illegal for employers to pay unequal wages to men and women who perform substantially equal work. Unfortunately, courts have narrowed and constrained the law in ways that undermine its fundamental goals.  In particular, some courts have interpreted the “factor other than sex” defense to permit employers to pay discriminatory wages for a limitless number of reasons.  The Paycheck Fairness Act would close this loophole by ensuring that employers relying on the “factor other than sex” defense may not pay men and women doing substantially equal work different wages unless the wage differential is justified by a job-related reason, such as education, training or experience, and consistent with business needs.

Below is the National Women’s Law Center response to the Equal Employment Opportunity Commission’s (EEOC) request for public comment regarding its plan for retrospective review of significant regulations pursuant to Executive Order 13,563. The Center strongly urges the EEOC to incorporate into its plan significant discretion as to when and whether to revisit existing regulations. The Center also encourages the agency to consider the impact such retrospective review will have on the agency’s ability to engage in new rulemakings, rather than revisions to or repeal of old rules. The EEOC’s agenda is critically important right now, and retrospective review should not come at the expense of new regulations, where the latter are sorely needed to enforce our civil rights laws.  Moreover, the Center urges the EEOC, in weighing whether to revise or repeal existing regulations, to take into account, where permitted or required by law, not only traditional and quantifiable regulatory costs and benefits, but also critical values, such as equity, human dignity, fairness, and distributive impacts.  The Center also encourages the EEOC to account for the fact that clear and comprehensive regulations interpreting civil rights laws reduce business costs and help employers more accurately measure risk.  Finally, the Center urges the EEOC to move forward with the collection of pay data from private employers, at a minimum from employers with 100 or more employees, and by job category, sex, race, and ethnicity.