Paycheck Fairness Act Fails to Clear Senate Hurdle

As expected, supporters of the Paycheck Fairness Act (S. 3772) failed to garner enough votes to advance the measure in the Senate, effectively killing the bill for the foreseeable future. The motion to move the bill closer to a vote failed by a margin of 58-41, short of the needed 60 votes. Senator Ben Nelson (D-NE) joined all Republicans present in opposing the bill. Senator Lisa Murkowski (R-AK) did not vote. At least 60 votes were needed to avoid the inevitable filibuster against the legislation, which would have, among other things, amended the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases, weakened an employer’s affirmative defense against such claims, incorporated anti-retaliation provisions into the FLSA, eliminated the requirement that employees work in the same establishment for wage comparison purposes, reinstated the Office of Federal Contract Compliance Programs (OFCCP) Equal Opportunity Survey, and required employees to “opt-out” of instead of “opt-in” to a class action lawsuit. These changes would likely have led to a dramatic increase in equal pay lawsuits, and undermined an employer’s ability to defend against them. As Sen. Mike Enzi (R-WY) stated before his vote was cast, “a better title for this bill should be the Jobs for Trial Lawyers Act.”

Sen. Majority Leader Harry Reid (D-NV) reintroduced the Paycheck Fairness Act in September. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). It was probably believed that the measure had the best shot of passage during Congress’s lame duck session, as fewer supporters will remain in both the House and Senate come January as a result of the midterm election.

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