Why the Argument Against Fair-Pay Laws Is a Farce

President Kennedy hands out pens during a ceremony at the White House on June 10, 1963, in which he signed into law a bill aimed at assuring women of paychecks equal to those of men doing the same work. Photograph by Bettmann/Corbis

On Tuesday, GOP senators blocked a Democratic bill that would have made it easier for women and others who suspect their employers are stiffing them to bring their grievances to court, voting down the Paycheck Fairness Act by 52 to 47.

Considering that Senate Republicans also quashed the legislation in 2010, no one expected it to pass. But the White House and Democrats wanted to make a point: Pushing the bill keeps so-called women’s issues in the public eye during a campaign in which Republicans have been losing ground with female voters. (It wasn’t enough to force Mitt Romney to take a stance on the bill.)

The pay act would have required employers to prove that differences in pay are based on reasons other than gender and would put them on the hook for compensatory and punitive damages. Right now people who bring these suits can recover only up to double their lost wages, plus legal costs. Women’s groups have argued that that discourages people who have legitimate claims from bringing cases.

Opponents have said that the bill would place an unfair burden on employers—and that women wouldn’t benefit as much as another group would: “By making it difficult for employers to defeat frivolous lawsuits, fostering larger class action cases, and creating an unprecedented level of remedies regardless of the intent to discriminate, the real winner with the passage of the Democrats’ bill would be trial lawyers,” says a briefing issued by the Republican Senate Policy Committee. “The increased liability that job creators would face could have a chilling effect on wage growth and hiring at a time when business should be encouraged to increase both.”

Those doomsday predictions didn’t bear out in Wisconsin, where a similar bill was passed in 2009. Not a single Wisconsin resident brought a case in state circuit courts in the three years that the law’s been on the books, according to advocates. At the same time, the state’s wage gap narrowed; Wisconsin women now earn 78¢ for every dollar earned by a man, up from 75¢.

Lack of cases notwithstanding, employers complained that the fair-pay law made for a climate of fear. Governor Scott Walker quietly repealed the damage provisions in the Wisconsin law earlier this year. Now that Walker has survived a recall attempt, you could say Washington wasn’t the only place where women lost this week.

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