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As expected, Senate supporters of the Paycheck Fairness Act (S. 2199) failed to muster the 60 votes needed to advance the bill to a floor vote. This bill would have, among other things, expanded damages available under the Equal Pay Act (EPA) to include potentially unlimited compensatory and punitive awards for wage discrimination; weakened an employer’s ability to raise the “factor other than sex” affirmative defense in a wage discrimination case; eased the requirements for bringing a class action lawsuit under the EPA; made it unlawful for an employer to prevent employees from discussing or comparing salaries; and imposed additional compensation reporting requirements on employers. The measure needed an additional six votes to ensure filibuster-proof consideration.
The failure of the Paycheck Fairness Act does not mean the issue is dead. To the contrary, pay equity will be an enduring issue through the November elections. As discussed in a recent Littler Workplace Policy Update, the President recently signed two measures aimed at taking certain provisions of the Paycheck Fairness Act and applying them to federal contractors. One Executive Order -- Non-Retaliation for Disclosure of Compensation Information – makes it unlawful for contractors to retaliate against employees who disclose their pay information. The second executive action was a Presidential 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.
Today’s symbolic consideration of the Paycheck Fairness Act will no doubt be used as a talking point by many policymakers as election season heats up.