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Washington Examiner


Paycheck Act is Trial Lawyers' Payday

May 02, 2012

By Diana Furchtgott-Roth

When politicians talk "fairness" and "equity," they usually mean the opposite. So watch out for the Paycheck Fairness Act, up for a Senate vote soon.

Democrats have forced former Massachusetts Gov. Mitt Romney to say he supports pay equity and the Lilly Ledbetter Fair Pay Act, signed into law by President Obama in January 2009. Now they want to see if they can get him to support the Paycheck Fairness Act.

Pay equity, defined as equal pay for equal work, is already law. But the Paycheck Fairness Act -- which failed in the 111th Democratic Congress -- seeks equal pay for different jobs, which is manifestly unfair.

The Ledbetter Act was a gift to trial lawyers, not women, who are less likely to be hired once bundled with potential lawsuits. The act changed Title VII of the Civil Rights Act to allow workers to argue their current compensation flows from intentional discriminatory decisions made years back, even if the firm no longer exists, or a former boss has quit or is no longer alive.

Women are already protected against discrimination by the Equal Pay Act, but without the punitive damages so attractive to trial lawyers. They can sue within two or three years of receiving allegedly discriminatory pay, if they can show they are paid less for the same work, because the act does not require "discriminatory intent" for redress, just discrimination.

The Paycheck Fairness Act would require the government to collect information on workers’ pay, by race and sex, with the goal of equalizing wages of men and women in different job classifications.

The bill, sponsored by Connecticut Rep. Rosa DeLauro and Maryland Sen. Barbara Mikulski, both Democrats, purports to solve the problem of the wage gap, whereby women supposedly make only 77 percent of men’s earnings.

But when jobs, hours of work and time in the work force are taken into account, women make about the same as men, according to numerous academic studies. Full-time women work fewer hours than men, and more women work part-time, according to Labor Department data.

Even among White House staff in 2011, records show, women made 82 percent of men’s earnings.

The Paycheck Fairness Act would only allow employers to defend differences in pay between men and women on the grounds of education, training and experience if these factors are also justified on the grounds of "business necessity."

Class-action suits would be facilitated by the bill’s opt-out clause. Currently, if a worker wants to participate in a class-action suit against her employer, she has to agree to take part, or opt in. Under the bill, she would automatically be included unless she opted out. This would dramatically increase the numbers in class-action suits -- a boon for plaintiffs’ lawyers.

Penalties that the courts could levy on employers would be heavier. Currently, employers found guilty of discrimination owe workers backpay. Under the pending bill, they would have to pay punitive damages, of which a quarter or a third typically goes to plaintiffs’ lawyers.

The bill would require the Equal Employment Opportunity Commission to analyze pay data and promulgate regulations to collect more, including information about the sex, race and national origin of employees, further burdening employers.

There are reasons for wage differentials between men and women who work different jobs. Miners’ work may be of equal value to that of day care workers, but companies have to pay people more to work in mines because the work is dangerous and dirty.

America already boasts some of the highest corporate tax rates and toughest regulations in the world. Now, Congress wants to favor women over men. How better to destroy the economy?

Original Source:



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