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March 16, 2010
Pay Bias Easier to Prove Under Proposed Bill

The Senate Health, Education, Labor and Pensions Committee recently held a hearing on the Paycheck Fairness Act (PFA), which would make it easier for workers to establish that their employer violated the Equal Pay Act.

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Stuart J. Ishimaru, Acting Chairman of the U.S. Equal Employment Opportunity Commission, testified in favor of the legislation.

He reported that in fiscal year 2009, the EEOC received 2,252 gender-based wage discrimination complaints, up 30 percent from 2006.

The FPA would narrow employers' affirmative defense for “factors other than sex.” If approved, the legislation would revise the Equal Pay Act to declare that the exception to the prohibition against wage differences between genders is limited to bona fide factors, such as education, training, or experience. The legislation states that for the bona-fide factor defense to apply, an employer must show that the factor: (1) is not based upon or derived from a sex-based differential in compensation; (2) is job-related with respect to the position in question; and (3) is consistent with business necessity. The legislation would also allow compensatory and punitive damages.

In his testimony, Ishimaru said that through agency's administrative enforcement process alone, the EEOC obtained almost $19 million for victims of wage discrimination in 2009. Settlements and judgments obtained in litigation would have increased the number more, he said. Still, the secrecy around compensation is the single biggest challenge the EEOC faces in indentifying wage discrimination, he argued.

The House approved the legislation in early 2009, but the Senate has yet to vote on the legislation.

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