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UPDATE: As expected, on Sept. 15, 2014, supporters of the Paycheck Fairness Act fell eight votes shy of the 60 needed to limit debate on the bill and advance it to a floor vote without the threat of a filibuster.
Senate Democrats continue to push pay equity as a pre-November election theme. On Wednesday, the Paycheck Fairness Act (S. 2199) resurfaced to serve this purpose. Supporters of the bill needed at least 60 votes on a motion to proceed to consideration of the measure. The chamber voted 73-25 in favor of proceeding.
This bill would expand damages available under the Equal Pay Act (EPA) to include potentially unlimited compensatory and punitive awards for wage discrimination; weaken an employer’s ability to raise the “factor other than sex” affirmative defense in a wage discrimination case; ease the requirements for bringing a class action lawsuit under the EPA; make it unlawful for an employer to prevent employees from discussing or comparing salaries; and impose additional compensation reporting requirements on employers. As explained in an April 2014 Senate hearing, critics of this legislation said it would, among other things, subject employers to extremely high damages regardless of the employer's size and whether there existed any evidence of intentional discrimination, and lead to a spate of litigation.
While legislative efforts to promote pay equity have stalled, executive and regulatory activities have picked up the slack in recent months. For example, this year President Obama issued an Executive Order – Non-Retaliation for Disclosure of Compensation Information – making it unlawful for contractors to retaliate against employees who disclose their pay information. The President also issued a Memorandum – Advancing Pay Equality Through Compensation Data Collection – directing the Department of Labor to issue regulations within 120 days that will require federal contractors and subcontractors to submit to the DOL summary data on the compensation paid their employees, including data by sex and race. The OFCCP issued such a proposal last month.
Although today’s procedural vote was successful, it does not signal that the Paycheck Fairness Act will pass Congress this year. Another 60-vote motion to end debate on the bill would need to pass before the Senate could move to a vote on final passage. Even if the Senate were to pass the bill, the Paycheck Fairness Act has little to no chance in the House of Representatives. The cloture vote to proceed to consideration of the bill, therefore, did not necessarily signify support for the measure.