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Globe Editorial

Bill takes on disturbing pay gap — but offers flawed remedies

November 17, 2010

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ALL EYES will likely be on US Senator Scott Brown this week as he casts a decisive Senate vote on the Paycheck Fairness Act, a bill aimed at helping women fight for equal pay in the workplace. But while parts of the bill would be useful, the measure as a whole is too broad a solution to a complex, nuanced problem.

The bill is meant to address a troublesome wage gap between women and men, which has decreased over time, but still persists; today, most women earn roughly 77 cents for every dollar earned by men in equivalent jobs. The reasons for this discrepancy are under dispute, and the Paycheck Fairness Act would take some steps to protect against blatant discrimination. Most notably, it would bar businesses from retaliating against employees who share information about their salaries with their coworkers. The bill would also provide funds to train businesses to improve their pay practices and train women to negotiate their salaries more effectively.

But the controversial meat of the bill is the changes it would make to the legal process, amending the Equal Pay Act of 1963. Where women today can only sue for back pay, the new bill would allow them to seek both compensatory damages and unlimited punitive damages. The bill would also make it easier for workers to join class-action suits. Most problematically, it would alter the burden on businesses, requiring them to prove that any difference in pay is the result of a business necessity, and to demonstrate why they didn’t adopt a plaintiff’s suggested “alternative remedy’’ that wouldn’t result in a pay gap.

But what if a company offers a higher salary for retail workers in a more dangerous location, and more men sign up? What if a male worker leverages a job offer into a higher salary? Should these be illegal acts? The bill would create too strong a presumption in favor of discrimination over other, equally plausible explanations for disparities in salaries. In addition, the threat of much higher damage awards by juries might lead businesses to make quick settlements for frivolous claims. (Today, about 60 percent of discrimination claims tracked by the Equal Employment Opportunity Commission are found to have no merit.)

Proponents of the bill note that today’s penalties for wage discrimination are so anemic that there’s no incentive for businesses that discriminate to change their ways. A narrower bill that would stiffen some penalties and ban retaliation would be helpful. But companies are right to be concerned that this bill, as written, is too deep an intrusion.