Mr. President, when the Senate rejected this legislation 20 months ago in a bipartisan vote it did so for the right reasons. The fact is, discriminatory pay practices are already illegal, and properly so. Congress has put two laws on the books to combat such discrimination – Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. These are both good laws that have been well-utilized to combat discrimination where it exists, and I support full enforcement of those laws. When a female or male employee is being paid less simply because of gender it must be corrected and penalized. According to the Equal Employment Opportunity Commission (EEOC), employees received more than $150 million through successfully-resolved Title VII and EPA discrimination claims last year, the largest amount awarded in 15 years.
I am confident that there is no member of this Senate who would tolerate paying a woman less for the same work simply because she is a woman. As husbands, fathers and mothers of working women, I believe we all recognize the gross inequity of discrimination in pay based on gender. But what the majority is trying to push through here today is of a very different nature. The so-called Paycheck Fairness Act is misnamed. It should actually be called a Profiteering Trial Lawyers Bonanza bill. The primary beneficiary of this legislation will be trial lawyers. They will be able to bring bigger class action lawsuits without even getting the consent of plaintiffs, and they will have the weapon of “uncapped damages” to force employers to settle lawsuits even when they know they have done nothing wrong. The litigation bonanza this bill would create would extend even to the smallest of small businesses – only further hampering the lagging economic recovery.
With unemployment trending back up to 8.2 percent, this is simply not a chance we can afford to take. When the Senate last rejected this bill, unemployment had been above 8% for 20 months. Now, it has doubled to 40 months, and it is trending higher. If we include the significant numbers of people that have simply dropped out of the workforce, the unemployment rate is over 14 percent. The United States is in very dangerous territory right now. This is not the time to pass this harmful legislation.
There are a number of other concerning provisions of this bill, such as authorizing government to require reporting of every employers wage data by sex, race and national origin. Had this bill gone through Committee mark up under regular Senate order, we may have been able to address some of these concerns. But this bill, like so many others this Congress, has circumvented regular order.
The Senate rejected this identical bill on a bipartisan basis 20 months ago because it will insert the federal government into workplace management decisions like never before. This intrusion will benefit trial lawyers and harm job growth and employment, which will affect both women and men.
Supporters of the bill cite wage data that the Bureau of Labor Statistics itself says “do not control for many factors that can be significant in explaining earning differences.” In fact, studies show that if you factor in observable choices such as part time work, seniority and occupational choice, the pay gap stands between 5 to 7 percent. Some of these choices are simply personal prerogative, and I would not question the choices that anyone makes with regard to family obligations, job security and the quality of fringe benefits such as health, retirement and childcare. But to a large extent this remaining gap is due to occupational choice. It is unfortunate that this Congress has not done more to foster a job growth environment and improve job training programs like the Workforce Investment Act that could prepare more women to enter higher earning occupational fields. Surely this would be a more reasonable solution than a trial lawyer bonanza sure to disadvantage all employers and depress job growth to the disadvantage of all employees.
I would like to insert letters of opposition to S. 3220 in the record. I urge my colleagues to oppose this motion.