by Art Gutman Ph.D., Professor, Florida Institute of Technology

There were two major calls on July 20, 2010 for the Senate to pass the PFA, one by President Obama, and one by Vice President Biden. The President called it a “common-sense bill” to ensure that men and women receive equal pay for equal work. The Vice President, speaking for a task force that includes officials from the DOL, EEOC, DOJ and OPM recommended that these agencies improve coordination and enforcement efforts. To that end, Labor Secretary Hilda Solis announced that the DOL will hire nearly 200 additional OFCCP staff to assist with the enforcement of its pay equity initiative. In addition, OFCCP will publish an Advanced Notice of Proposed Rulemaking early next year that will seek input from stakeholders on how to improve its EEO survey, to launch public education efforts by the Women’s Bureau with respect to its Equal Pay Checklist, create a revamped Equal Pay Employer Self-Audit tool, and hold an Equal Pay Research Summit.

Readers may recall that the House passed the PFA on August 1, 2008 as a companion bill to the Ledbetter Act. The Ledbetter Act was signed into law by President Obama on January 22, 2009, but the PFA has languished since that time. The text of the House Bill may be viewed here.

As written, the House bill amends the Equal Pay Act (EPA) of 1963 in five ways. First, it renames the factor other than sex (FOS) defense in the EPA to “bona fide factor other than sex (BFFOS) --- such as education, training or experience.” Also, as specified in the bill, the BFFOS defense borrows from the Title VII adverse impact defense, mandating that it:

(i) is not based upon or derived from a sex-based differential in compensation;
(ii) is job-related with respect to the position in question; and
(iii) is consistent with business necessity.

Also, as in Title VII adverse impact scenarios, the BFOS defense does not apply “where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.”

Second, the bill broadens the definition of “establishment” so that individuals are deemed to work for the same employer “at workplaces located in the same county or similar political subdivision of a State.”

Third, the bill changes wording relating to retaliation to explicitly incorporate the “opposition clause” (complaining about a practice) and the “participation clause” (filing an actual claim) from Title VII. There is also specific language proscribing retaliation by employers if an employee “has inquired about, discussed or disclosed the wages of the employee or another employee.”

Fourth, the bill extends the remedies in the EPA to be consistent with those in Title VII and the ADA. These include compensatory damages for pain and suffering and punitive damages “where the employee demonstrates that the employer acted with malice or reckless indifference.”

Fifth, the bill changes the procedures for class action lawsuits from currently existing “opt in” rules to “opt out” rules used in the Federal Rules for Civil Procedure, and used in Title VII.

These are major amendments to the EPA, and it will be interesting to see what, if any, modifications are made by the Senate.

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